Executors conflict

I am dealing with an estate where a brother and sister are the executors for their Aunt. Initially they were both happy to act and signed my firm’s terms of business letters appointing us to act on their behalf. The sister is also the main beneficiary and is the person who has given me all the details etc.

The papers are ready to go and the sister has signed everything. The brother is now refusing to give me instructions, refused delivery of the papers and generally won’t agree to proceeding with the administration. He is simply unhappy that he is not benefiting from the estate and is using his role as executor to put pressure on his sister to give him funds.

I have advised them both of their duties as executors but to no avail.

From a conduct/conflict point of view is there a way I can continue to act for the sister and terminate our retainer with the brother on the grounds that we are advising the estate (I do not think he will want this to happen)? If not, has anyone else come across this and how was it resolved? (he will not take any independent advice and there are no grounds for any claim against the will or estate).

Christine Thornley

To proceed in the way you indicate would be to take the side of the sister against the brother. Although he certainly appears to be acting unreasonably you are acting for them jointly. You should advise them both to obtain independent advice and that you will do nothing further without agreed instructions. In that way you may still be able to continue to act in the estate if they resolve their differences.

And appearances may mislead- if for example there is more than one will in existence.

Tim Gibbons

I agree with Tim Gibbons. If you are conflicted from acting for the sister alone, then would she better served by seeking independent representation to make an application with power reserved to the brother? If you hold the Will, this could be delivered up to the Probate Registry in anticipation of the application and the sister can authorise you to release a copy of the papers you have in your file being personality for which an executor’s authority is joint and several.

If there are genuinely no grounds for a claim then the brother will not be able to block the application (unless he files a caveat absent grounds which often happens) and the stalemate will be lifted. He could attempt to take out a Grant of double probate, but that is easier said than done and if the sister has a head start, this may not be of much threat to her.

Stuart Adams
Mishcon de Reya LLP

I had a situation where the executors – siblings – fell out and started suing each other mid-administration. Having been instructed jointly, we were in a very similar situation to the one Christine finds herself in now, albeit somewhat deeper into the administration.

I was able to get the executors to agree that we would continue to administer the estate (collecting in assets, settling liabilities, etc), but then hold the proceeds until they either agreed to release them, or one of them obtained a court order authorising the release.

I won’t say we had an easy time of it, but it allowed us to continue to the non-contentious work while they each took separate and independent legal advice regarding the points on which they disagreed. By the time the litigation settled (after some years, in fact), we were in a position to simply write them cheques and settle the matter, which would not have been the case if the administration had been frozen for those years of litigation.

Taurean Drayak
Elliot, Bond & Banbury