Disputes Over The Identity Of An Independent Professional Executor

Most testators tend to appoint more than one executor in their Will, which is always advisable so as to increase the likelihood of there being at least one executor surviving on death and further to ensure an estate is dealt with fairly. This is most commonly seen when parents appoint all of their children as joint executors on the presumption that they will act together to achieve proper administration. If there is no dispute in such scenario, one chosen executor will tend to deal with the majority of the estate administration.

However, appointing more than one executor will always create the potential for disagreements and therefore, the chance of a dispute. Disagreements can be over anything including:

• The distribution of specific assets;
• Sale of assets, including the timing of sale;
• Varying the Will;
• Use of accounts and many other specifics.

Solicitors come across a variety of disputes and it appears from experience that there is nothing too trivial in respect of estate administration when it comes to disputes.

Most disputes will be dealt with without the need for formal proceedings or even a solicitor’s involvement. The more involved disputes on the other hand will often require solicitors to be instructed and may lead to formal Court proceedings. If an agreement cannot be made between the parties before trial, the Court will need to make a decision.

The appointment of an independent professional as executor

An alternative approach in dealing with disputes and one often favoured by clients is to appoint an independent professional as executor. This will be a solicitor who specialises in probate work and will administer the estate either as executor, or on behalf of the executors, properly and fairly.  The solicitor will be acting in the best interests of the beneficiaries of the estate and therefore will not be able to favour a specific party.

As with disagreements over estate administration, it is possible for disputes to arise over which independent professional should be appointed as executor. These disputes can take on a life of their own and may require solicitors to be instructed and lead to formal Court proceedings. This was recently the case in Liu v Matyas.

Liu v Matyas [2020] EWHC 2807 (Ch)

In this case, the deceased appointed his partner, Mr Matyas, and his brother, Mr Lui, as executors in his Will. It was later agreed that an independent professional executor should instead be appointed due to claims Mr Matyas had against the estate. Both Mr Matyas and Mr Liu had different opinions as to what professional should be appointed and this proceeded to be an issue which came before the Court.

Both parties submitted the reasons for their respective choice of solicitor to be appointed and provided support for their decision. It was noted that both solicitors were very similar and it was difficult to form any distinction based on qualifications and experience alone. The Court therefore had to consider a number of factors, as listed below:

• Knowledge and experience;
• Contentious probate experience (due to Mr Matyas’ potential claim against the estate);
• Availability to take on the work;
• Locality;
• Special factors;
• Value and complexity of the estate;
• Administration of ongoing Trusts;
• Continuing relationships;
• Wishes of the beneficiaries; and
• Costs.

Based on the above, the Court was only able to distinguish between the two executors on grounds of cost. One solicitor was charging £490 plus VAT per hour whilst the other was significantly cheaper at £250 per hour plus VAT per hour. This difference was mainly due to the more expensive solicitor being based in a city firm and therefore attracting a higher rate.

The Court concluded that the estate in question did not warrant use of a city solicitor and therefore decided the cheaper solicitor was to be appointed as executor. This case now provides us with a guideline as to what the Court will consider when faced with a decision between two professional executors.