Where an executor of an estate is not in agreement with a co-executor’s decision but reluctantly agrees to proceed with it, will the reluctant executor still be jointly and severally liable for the decision? Is there anything they can do to protect their interests?

Joint and several liability of executors

A testator may appoint a sole executor or alternatively two or more executors to act jointly. Probate will not be granted to more than four executors in respect of the same part of the deceased’s estate . As the question states, the authority of co-executors is joint and several, as is their liability. They are effectively treated as one person so the acts of one bind the others. For example, the release of a debt or the transfer of goods by one of several executors is valid and will bind the other executors.

This is the position even if one or more of the executors is in dissent, see: Smith v Everett (settlement of an account).

The exception to this general rule is in respect of land. The concurrence of all the executors is required for a contract to convey land or a conveyance.

Disputes between executors

If, prior to the grant of probate, it is likely that disputes will arise between co-executors named in the Will, courses of action include:

• a named executor can renounce probate provided they have not intermeddled/taken any action in respect of the estate. See section 5 of the Administration of Estates Act 1925, Non-Contentious Probate Rules 1987, SI 1987/2024, r 37 and Holder v Holder
• when the grant is issued, an executor can have power reserved to them and can thereby apply to the court to act at a later stage if they so wish

The Q&A deals with the situation after the grant of probate has been issued, when the two executors are in the course of administering the estate. If there is a dispute between executors preventing the proper administration of the estate, the following courses of action are available:

• application to the court by Part 8 claim form under CPR 64 to determine any question arising in the administration of the estate
• in cases of extreme conflict, the court can, in its discretion, remove an executor and may appoint a new person to act. See Practice Note: Administration actions—removal of personal representatives—practice and procedure

If you would like a chat to discuss further, please feel free to contact me for a free 30-minute consultation.

Sophie Campbell

01637 800 306