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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8443
Experience:  I have been practising for 30 years.
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How can beneficiaries can apply for a court order to remove

Customer Question

How can beneficiaries can apply for a court order to remove or substitute an executor by making a Part 8 Claim, under the Civil Procedure Rules 57.13
Submitted: 17 days ago.
Category: Law
Expert:  F E Smith replied 17 days ago.

Why do the beneficiaries want to remove the executor?

What is the executor doing wrong or what is the executor not doing?

Is the executor a solicitor?

What kind of communications is the administrator executor ignoring?

If we can have the background it would be useful please. Thanks.

Customer: replied 17 days ago.
Because he has a conflict of interest and is not communicating with the beneficiaries. I am happy to copy a recent email we sent him if you would find this useful. No the executor is not a solicitor. Emails , letters and phone calls. See email for background:
Dear Mr Lade, The Will of Mr Stanley Howes.
Further to your communications with Ken and Shirley Winterbottom concerning the will of Mr Stanley Howes, I am contacting you on behalf of the nephews and nieces of Stanley Howes to inform you that they are contesting the will.
We have accessed a copy of the will, (Testament signed by Stanley Howes on the 12th June 2015), following granting of probate on the 13th of July 2016 and note that the will of Stanley Howes is in no way clear from the testimony recorded by the notary.
The will contains a number of factual inaccuracies. The particular inaccuracy which is a material in terms of the distribution of Mr Stanley Howes assets concerns the implication that you and your immediate family are the nephews and nieces of Mr Stanley Howes.
The source of contention lies in clause 2 of the testament which I quote below in the original Spanish with the English interpretation.
Segunda: Instituye herederos de todas sus bienes y derechos sitios en España y en el extranjero en partes iguales a sus sobrinos:
-Dona Karen Lade, con domicilio en 10 Hillier Close,Slad Road, Stroud, Gloucestershire, Reino Unido, GL5 1XF
-Don ***** ***** Lade, con domicilio en***** Highfields Road, Dursley, Gloucestershire, Reino Unido, GL11 4N
-Don Andrew Lade con domicilio en***** Quedgeley, Gloucestershire, Reino Unido, GL2 4HD
-Don Jason Lade con domicilio en 10 Hillier Close, Slad Road, Stroud Gloucestershire, Reino Unido, GL5 1XF
Second: He names to all his properties and rights in Spain and abroad, in equal shares, to his niece and nephews:
-Mrs Karen Lade, addressed in 10 Hillier Close, Slad Road, Stroud, Gloucestershire, United Kingdom, GL5 1XF
-Mr ***** ***** Lade, addressed in***** Highfields Road, Dursley, Gloucestershire, United Kingdom, GL11 4N
-Mr Andrew Lade, addressed in***** Quedgeley, Gloucester, United Kingdom, GL2 4HD
-Don Jason Lade, addressed in 10 Hillier Close, Slad Road, Stroud, Gloucestershire, United Kingdom, GL5 1XF.
The implication of the testament seems to be that the 4 members of the Lade Family are the niece and nephews of Mr Stanley Howes. This is clearly not the case.
The Howes family believe that the intention of Stanley Howes in clause 2 of the will was to quite simply divide the remainder of his estate between his nieces and nephews and the Lade family. They also believe that when he was read the will aloud in Spanish that he would have recognised the list of people he intended to be his benefactors, namely his nieces and nephews and the four named persons of the Lade family and that he would have been satisfied that his intentions were being followed and he would have signed the testament accordingly.
What Stanley did not recognise when the will was read to him, or on his subsequent reading of the English translation, is the use of the colon following the expression ‘niece and nephews’. This implies that the Lade family are Stanley Howes’ niece and nephews. Had Stanley recognised this subtle use of syntax and the implication of this, he would most certainly have pointed out that that the Lade family were his step-son and step-son’s immediate family and not his nephews and nieces.
We would be grateful if you could confirm your interpretation of the will.
Given the obvious lack of clarity in the will it is most regrettable that you have not seen it as your duty, as the administrator of the will, to communicate more openly with the nephews and nieces of Mr Stanley Howes at a much earlier stage. I would remind you that you are obliged as the administrator to provide the benefactors with a certified schedule of Mr Stanley Howes’ gross and net assets in Spain and abroad and the planned disbursements, (estate accounts to date). We would be grateful if you could arrange for your solicitor to send this information as soon as possible.
Julie and Susan Howes the senior nieces of Stanley Howes have already received some preliminary legal advice with regard to contesting their uncle’s will and its execution. You may wish to hand this letter to your solicitor for further deliberation and communication but we would much prefer at this stage to communicate directly with you.
The law states that for the will to be contested in the courts this must be initiated within six months of probate being granted. If we are all to avoid the legal costs and stress of this matter being taken to court, we would appreciate it if you could confirm your interpretation of the will as soon as possible and hopefully this
Customer: replied 17 days ago.
I have a hearing impairment so prefer to communicate in writing.
Expert:  F E Smith replied 17 days ago.

I can see the anomaly in the will.

Firstly, you are going to need a certified translation because the court will not accept anything other than a court approved translation. Because this is been admitted to probate, I assume you have that.

I am not convinced however your argument would stand up.

If the colon had been replaced with the word “and” then you would be absolutely correct.

I think you have a claim against whoever drafted the will in negligence.

If this went to court (talking about the interpretation of the will, not removal of the executor) I think it could go either way. I think a lot would depend on what relationship the deceased had with the nephews and nieces and whether they were close and how close he was to the Lade family. Clearly, he was close to the family because he names them but doesn’t name the nephews and nieces.

Moving on to the point about removal of the executor, I don’t think this is a matter for removal of the executor, I think this is a matter for the determination of the interpretation of the well by the court.

It is only a conflict of interest if the executor is one of the beneficiaries.

You asked about removal of executors and I can do no better than let you have these two articles which explain the complexities in the process. It is not for the fainthearted. if the action fails, it could be expensive.

however I would emphasise again, that to my mind, it is not a case of removing the executor, the case of contesting the will. It is a different application altogether.

The potential beneficiaries contesting the will need to be aware that if their claim fails, they could face legal costs running into tens of thousands of pounds so they may want to try to see they can get a solicitor to do this on a no win no fee basis because then, the solicitor may be able to obtain after the event insurance that would pay the legal costs if the claim was not successful.

At this early stage, might I also suggest that the claimant’s instruct Chancery Counsel (a barrister) to get an opinion on the likely chance of success. That opinion will be central to whether any after the event insurance is obtained. Counsel’s advice on this would probably cost between £600 and £800 plus VAT and before proceeding any further, that would be the first thing that I would do.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.


Customer: replied 16 days ago.
Hi, A couple of points, I would appreciate clarification on. First the certified translation. The facts are that an interpreter attended with the deceased in the making of the will. In the will it says that the English interpreter has translated the will exactly according to the Spanish presumably this was as accepted by probate. Is it still necessary to get a certified translation. How is this done.? You say 'It is only a conflict of interest if the executor is one of the beneficiaries.' This is in fact the case. The administrator of the will with will attached is Mr Andrew Lade. Does this fact allow us to make a part 8 claim more easily. Having read the pdfs which you linked to your correspondence I agree it seems rather complicated, What might the costs be of doing this?
Expert:  F E Smith replied 16 days ago.

As it has been admitted to probate, the translation is probably of less concern than it would have otherwise been. So I probably wouldn’t bother getting another copy.

If the executor is one of the Lades then there is a conflict of interest because he will want the maximum amount of cash for himself to the exclusion of the nephews and nieces.

On a semantic point, the wording you gave, when translated, only refers to nephews and not nieces. I don’t know whether there are any nieces because on a strict interpretation, (if the wording you gave is correct) would exclude nieces.

The conflict of interest would make the court look at the application to remove the executor more favourably. In these circumstances, if I was advising the executor, I would advise the executor to pass the reins over to a mutually acceptable firm of solicitors. However if the executor has already done any work on the estate at all, even a tiny amount, he is then deemed to have “inter-meddled” and even if he agrees (which he would be well advised to do) it’s going to need a court application anyway.

If he doesn’t defend the application, you are probably talking about a couple of thousand pounds of legal costs. If he defends the application, it could easily run into tens of thousands although you would normally recover those costs from him personally if the application was successful.

As I said earlier, in my opinion, the application to remove the executor is the wrong application, it’s an application to determine the interpretation of the will.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8443
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 14 days ago.
Can you please clarify if an heir has to be specifically referred to by name to be an heir on a will. Is it acceptable to designate heirs using a collective term such as my nieces and nephews?
Expert:  F E Smith replied 14 days ago.

There does not have to be a specific name and terms such as wife, husband, children, son, daughter, nephews, nieces are used regularly provided the class of person is easily defined. So it would depend on whether there is any issue over whether any of the nephews are nieces are actually such. Provided they are just children of siblings of the deceased, there is no problem. Incidentally, adopted children and illegitimate children are treated in exactly the same way as natural children.

Customer: replied 12 days ago.
Many thanks for your reply re the use of the collective term nieces and nephews. One more question. If we instructed a solicitor to take up our case on a no-win no-fee basis we understand that we would have to pay a success fee of 50% of the monies which they won for us. Is this 50% fee standard in these cases or is it worth shopping around? Secondly if the case is won would any of the court costs be awarded against the defendant. We are trying to spell things out in a letter and encourage the Administrater of the will to discuss things with us to avoid going down the court route.
Customer: replied 11 days ago.
Is it possible to recover the costs of the success fee from the losing apponent?

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