04 Sep 2025
By Lorna Davidson, Senior Associate at Gilson Gray.
We are seeing an increasing number of family disputes following the death of a loved one. These sad family breakdowns often arise from concerns about the actions – or lack of actions – taken by the executor.
When someone passes away in Scotland, their estate – in other words all their assets – are looked after or administered by an Executor. The Executor’s role is to administer the estate according to the deceased’s wishes and according to the law and they are under a duty to maximise the estate for the benefit of the beneficiaries. In practical terms, their job essentially involves investigating the extent of a deceased’s estate, settling any debts and liabilities and finally distributing the estate to the beneficiaries.
While most Executors will carry out this role to the best of their ability, sometimes things can go wrong. This might be because the beneficiaries have unrealistic expectations of how quickly they will be paid but occasionally it is because the Executor is struggling to fulfil their role for some reason. Disputes can arise due to the fraught and emotional situation coupled with a belief (justified or otherwise) that the other party is not behaving in a way they consider the deceased would have wanted or is not administering the estate in accordance with the deceased’s wishes. Appointing an Executor is considered a matter of fundamental importance; the deceased considered that person or persons best placed to administer the estate in accordance with their wishes. It is for that reason that people should give careful thought in advance to who they want their Executors to be.
It is an unfortunate reality that disputes do arise and when they do taking proper legal advice quickly can resolve matters in the most cost-effective way possible. Solicitors can try to negotiate resolution either informally or perhaps through a more formal mediation procedure or by appointing additional executors to “break the stalemate”. If negotiated resolution is not possible there has also historically been the possibility of asking the court to remove an executor via the Nobile Officium function of the Court of Session. Clearly this is an extremely serious request and therefore the court will only be willing to do that were the Executor’s continued involvement would prejudice or obstruct the administration of the estate or if there is serious misconduct (along the lines of a refusal to act, a deadlock or an unresolvable conflict of interest). That option is expensive, time consuming and has no guarantee of success in many cases.
Further, in terms of Section 23 of the Trusts (Scotland) Act 1921 an Executor could be removed only in four extremely limited circumstances.
The four grounds set out above are extremely limited and quite difficult to prove. In practice, the desire to remove an Executor is likely to arise due to: (i) delay in administering the estate, (ii) a dispute between the parties or (iii) two Executors ending up in a deadlock situation over a decision in relation to the estate and how matters should be dealt with.
However, there is now a new and potentially more accessible route. The Trust and Succession (Scotland) Act 2024 received Royal Assent on 30 January 2024 and was intended to modernise the law and make it clearer and more accessible to remove Executors in appropriate circumstances. Section 7 sets out that an executor can be removed when he or she:-
(a) is unfit to carry out the duties of a trustee,
(b) purports to carry out those duties but does so in a way which is inconsistent with, or might be inconsistent with, a trustee’s fiduciary duty,
(c) has neglected the trustee’s duties as trustee,
(d) is incapable, or
(e) is untraceable,
In order to go down this route you will have to lodge a petition in the sheriff court where the deceased was domiciled requesting removal. The petition will have to set out the grounds upon which you say removal is justified and should also set out in what way the Executor’s failings are having a negative effect on the estate (and ultimately the beneficiaries). Given the Act is a fairly recent piece of legislation, we will need to wait and see how this section is applied and used in practice, but it certainly offers unhappy beneficiaries a potentially more meaningful route to remove an executor
At Gilson Gray we understand how important obtaining early legal advice can be when a dispute arises. We can help Executors to deal with the estate, so reducing the risks of a dispute but, if one arises, we can provide support and guidance. Equally, if you are the party wishing the removal of an executor, we can give advice on your range of options. In addition, in what can be an extremely emotionally charged situation, taking proper legal advice as quickly as possible can alleviate some of the stress. It is also worthwhile obtaining advice from our private client team to try, insofar as possible, to safeguard against these types of situations arising in relation to the administration of your own estate.
