Can I replace the executors of my mother’s estate?

My mother recently died and while she has a valid will, we are concerned over her choice of executors. They don’t seem to be doing anything, take an awfully long time to respond to any questions and, when we speak to them, they do not seem to have a full grasp of my mother’s estate. Is it possible to question the decision making of those executors or have them replaced entirely (which we suspect they would welcome)?

Jennifer Quick, associate solicitor at law firm Taylor Walton, says executors should first notify the beneficiaries of a will that they have an interest in it. Some executors are then communicative and will keep them updated throughout probate. Others just get on with it and the beneficiary will only be contacted again at the end of the process to arrange paying them their legacy. In more unusual circumstances a beneficiary may hear nothing until they receive their legacy at the end of the process.

An issue now is the length of time it takes for probate (the legal right to deal with someone’s property, money and possessions) to be granted in England and Wales (Scotland and Northern Ireland have different rules). The Probate Registry recently said that beneficiaries of a will should allow at least 16 weeks for the grant of probate to be issued after they have received the application. A typical timescale is that it takes six months for the grant of probate to be made (as the application is rarely made immediately after the death) and another six months for the assets to be sold and matters concluded.

Where you suspect nothing has been done or the executors are not acting very quickly, a letter or email to them outlining your concerns is the starting point. If they are still not forthcoming with any information or admit they haven’t done anything, you are right to be concerned. Executors have a duty to provide the beneficiaries with information if they request it and to answer questions and there is the expectation that this will be done promptly.

Inaction by executors can be down to their lack of experience or they may not want to act quickly as it isn’t in their interests to do so, for example, if they live in a property which is to be sold and the proceeds distributed among other beneficiaries.

They might be deliberately slow to respond for petty reasons. The death of a loved one can also trigger historic disputes and where family relationships may have broken down over time, it can be difficult to put these issues aside. 

If you have given the executors the opportunity to explain, in my experience this usually helps speed the process up. If the executors don’t know how to progress probate, especially if dealing with more complicated estates such as your mother’s, the executors have a duty to take professional advice.

If you receive no response from the executors or you are dissatisfied with their response, you can make an application to the Court of Probate for them to be substituted. You would need to demonstrate to the court why they should be replaced and who is better suited to act as the executor — which may typically be to appoint a professional.

There would be costs associated with this route and it will take time for a hearing date to be set.

The executor could offer to step down if they don’t have the experience or time to act and new executor appointed to conclude matters. There is a lot of personal risk involved with being an executor and people without knowledge or experience should be cautious about agreeing to this role.

Can I stop a builder building on my property’s boundary?

A builder has recently bought the house next door to mine. Within a couple of months, he secured planning permission to build close to our shared boundary, but in recent communication he has strongly indicated that he’s going to contravene restrictive covenants and the permission by building on the boundary and moving the boundary fence. I’m worried as I know court injunctions are expensive. Building hasn’t started yet, so can I do anything now before the expense starts?

Matthew Hearsum, partner at law firm JMW Solicitors in London, says it is important to establish three things. First, which land benefits from the restrictive covenant; for example, who may enforce the rules that limit what can be done with the land. Second, which land is burdened by the covenant (against whom the covenant may be enforced). Third, what specific matters are restricted by the covenant. Seeking specialist legal advice early on will help in establishing a breach if and when it occurs.

If your neighbour intends to breach a restrictive covenant — or indeed commit any other unlawful act such as trespass — then the court has the power to grant an injunction. An injunction requires the defendant not to do, or stop doing, specific acts. If a defendant disobeys that order they may be held in contempt of court, and could be fined, imprisoned or have their assets seized.

In some circumstances the court will grant a precautionary injunction which prohibits the breach even before it has taken place. It is necessary to establish not only that the acts complained of would be unlawful, but also that there is a real and imminent risk of harm.

Prior to initiating legal action, you should communicate with your neighbour to seek confirmation of their intentions. Many neighbour disputes are borne of misunderstandings that can be corrected quickly with an open and frank conversation.

Even if you receive verbal assurances from your neighbour, it would be prudent to send them a letter, setting out your concerns, and asking them to confirm in writing that they will not commit breaches. 

If your neighbour does not provide the assurances sought, you should consider instructing a solicitor to send a formal “letter before claim”. This will set out the legal basis of the claim against the neighbour and ask them to give an undertaking (a legally binding promise) not to do the acts complained of. It will also include a warning that, if the undertaking is not provided, legal proceedings may follow. 

If, having followed the process above, your neighbour has declined to provide you with written assurances then you can rely on this as evidence that there is a real and imminent risk that they will commit the breach in support of an application for a precautionary injunction.

Applications for an injunction can be expensive, but if the application is successful, it is likely that the court will order your neighbour to pay a significant contribution to the legal costs incurred. While there will be an unrecoverable element of legal costs, this is often less than would be incurred in dealing with the claims for loss and damage that may result or, as Benjamin Franklin put it: “An ounce of prevention is better than a pound of cure.”

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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