The administration of an estate or a trust will not always run smoothly and there will be occasions where disputes arise, either between beneficiaries and executors/trustees or between executors/trustees themselves. Executors and trustees have an obligation to comply with a number of fiduciary duties when carrying out their role. These include ensuring that they are acting in the best interests of the estate or the trust, and the beneficiaries, at all times. They must also be careful that they do not allow their personal interests to conflict with their overriding fiduciary duty. If an executor or trustee fails to abide by their duties, this could cause loss to the trust and lead to a claim against them for breach of trust. These disputes can also often lead to the removal and/or replacement of the executor or trustee, whether that be by agreement or at the end of a contested court case.
Some common examples of breaches of trust are:
- Mismanagement of trust funds to include making bad investments or distributing funds to the wrong people or in the wrong proportions
- Failing to act impartially between beneficiaries
- Failing to act in accordance with the terms of the will or trust document
- Refusing to provide information to which beneficiaries are entitled
- Failing to keep proper estate/trust account and records or to progress matters in relation to the administration in a timely manner
We can advise both beneficiaries and trustees in relation to these matters, including considering with you the possible remedies available to resolve the dispute. We can offer practical advice and guidance to both beneficiaries and executors/trustees to help navigate through problematic estate and trust administration issues. This may include assisting with obtaining information about the estate or trust and making proposals to resolve any impasse which has been reached. We can also advise in relation to the procedures which will need to be followed, and the documentation required, to remove executors and trustees, including ensuring that appropriate indemnities are put in place. We will consider pragmatic and cost-effective solutions with you throughout the matter, including the possibility of appointing an independent professional personal representative or trustee in place of the existing parties, where appropriate.
