The recent case of Campbell v Campbell  CSOH 3 involved a petition for the removal of executors on the grounds that they had acted improperly in administering an estate. While the court criticised the actions of the executors, the case reminded us of the high bar currently required to remove an executor under common law in Scotland.
There are currently two ways in which an executor can be removed in Scotland.
Removal under statutory powers
The first is to make an application to the Court of Session or the sheriff court under the Trusts (Scotland) Act 1921. Section 23 allows the court to remove an executor on the following grounds: (i) insanity; (ii) incapacity; (iii) absence from the UK for six months or more; or (iv) ‘disappearance’ for six months or more. These grounds can be helpful if the incapacity or absence of an executor is preventing the proper administration of an estate. However, they are unlikely to be of assistance if a dispute arises based on the conduct of an executor already acting.
Removal under common law
The second option is to apply to the Court of Session to remove an executor through the exercise of the common law nobile officium. This is a discretionary power which allows the court to provide a legal remedy where none exists.
When a will is made, an individual personally chooses the executors they wish to administer their estate on death. For this reason, a court will rarely exercise its discretionary power to remove an executor unless there is no other option. This could mean the removal of an executor who consistently and unreasonably refuses to carry out their duties, or who has an unacceptable conflict of interest between their personal interests and fiduciary duties. What is clear from the case law so far is that a court will not remove an executor simply based on poor performance, or disharmony between executors and beneficiaries of an estate.
Campbell v Campbell
The executors in the Campbell case made a number of errors in administering the estate. These included claiming unallowable expenses, omitting assets from the estate inventory, and failing to provide accounting when requested. Despite this, the judge found that the test for removal was not met. This was largely because the errors could be remedied by the executors and properly accounted for to the beneficiaries. In reaching her decision, the judge reiterated that there must be something more than mere irregularity or a lack of co-operation involved before the court will exercise their power to remove an executor.
The Campbell case also raised the question of the extent to which the previous actions of the executors, in their capacity as the deceased’s financial attorneys, should be considered by the court. The executors had acted under a power of attorney to assist with the deceased’s financial and welfare matters for a number of years before his death. This included operating a bank account in the deceased’s name which they used to reimburse themselves for expenditure incurred on the deceased’s behalf and to make gifts to family members. The judge found in this case that all payments were made in consultation with the deceased and with his agreement. However, she noted that if reliable evidence exists that an executor who previously acted as a deceased’s attorney wrongfully applied funds for their own benefit prior to death and later refuses to provide accounting, that may be a sufficient ground for their removal as executor.
The Scottish Law Commission has previously suggested that the common law grounds for removal of an executor should be replaced by statutory provisions, including a ground based on neglect of duties as an executor. This could help to clarify the standard required but would inevitably still require court involvement to determine whether the bar had been met. What the Campbell case reminds us is that the current bar is set high. A court will be unlikely to remove an executor unless their actions mean that the administration of an estate is a practical impossibility. It also reminds us of the importance of keeping accurate records while acting as an attorney during an individual’s life.