I am an executor to my late father’s will but my late father’s solicitor and my sister have excluded me from day one. It is like the solicitor and my sister are the executors. Is something amiss here?
I am writing to you as my last hope in finding out if my right as an executor of my late father’s will can be reserved by my sister as the second executor without my knowledge? I have paid thousands out on solicitors so far and I just can’t seem to get any answers.
She has also got the probate on the grounds that she reserved my right. I asked my late father’s solicitor to send me all my late father’s documents and he only gave them to my sister. Two years later, I got some bank statements but nothing else.
My siblings put my father in a home against my father’s and my wishes. The home was paid out of my father’s bank account. How is this possible? She said she had enduring power of attorney over his affairs before he died. My sister tried to get enduring power of attorney but it was never sanctioned.
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I just want to do the job I was given.
Mr P.D., email
I am always wary of getting involved in situations where a cast of solicitors have been unable to provide any peace of mind – even when paid thousands of euro. I am, after all, only a humble journalist without any legal training.
However, something does seem very awry with the position in which you have found yourself. The caveat, or at least one of them, is that it may now be too late to do anything about it.
It is not unusual for people to appoint more than one executor. Many people do it, for instance, to have a family member involved but also a solicitor so that there is expertise on hand for the technical and bureaucratic enterprise that is probate.
The standard procedure is that executors act together to oversee the affairs of the dead person’s estate, but it is not always so harmonious.
In your case, there is clearly a long-standing and fairly deep-seated difference between you and this sister over your father. It extends back well before his death and will thus likely have made any joint enterprise between you to execute probate a fairly strained affair.
But that does not mean it should not have happened. All executors have equal right to act and I do not see how your sister – and, more importantly a solicitor, an officer of the court – could or would arbitrarily exclude you at that time.
You refer to your sister “reserving” the right to act as sole executor. That has me somewhat confused.
It is possible for an executor to reserve their right to carry out the role. That means they take a step back from acting as executor in managing the affairs of the estate and making application for probate, but they “reserve” the right to get involved at a later date. It’s basically taking an option. You’re saying, no, I don’t really want to get involved in this but I might change my mind down the line.
So in this case, in terms of your exclusion from being involved, only you could have done that and you would have had to do so in writing.
If your sister reserved her right to act as executor, she would effectively have been removing herself from the role, not excluding you. You cannot reserve a right to exclude someone else and she cannot force you out of the role – unless she can prove to a court that you were not in a position to carry out the role, and that would not have happened without you being notified and involved in the proceedings.
Reserving is not the same as renouncing, while we are on the subject. An executor who renounces the position gives it up absolutely: they cannot step back in the way that someone who has reserved their right is able to do. In both cases, any reserving or renouncing needs to be done before the grant of probate.
But spouting specialist terms can be intimidating and it does seem in your account that she has successfully prevented you having a role here. You mention her previously suggesting she had an enduring power of attorney in relation to your father when a decision was made for him to go into a nursing home – a call with which you were not happy. It does have to be pointed out that your own letter makes clear that you were the outlier among all the siblings in opposing the option of nursing home care. That does not mean the family’s call was the right one at the time but it does suggest the balance of family opinion supported it.
You say it subsequently transpired that she had tried to put in place an enduring power of attorney but that it was never “sanctioned”. Family dynamics are funny things but, accepting something was clearly wrong with your exclusion as executor, there is a part of this that sounds to me like a brother or sister effectively saying “I know best” and cloaking it in terminology to give it a vaguely official patina, or impression.
Similarly, while it is clear that only your father should have had access to his bank accounts in the absence of a power of attorney, it would not be the first Irish family where more informal intrafamily banking arrangement were made.
In the end, the question here is where do you now stand? You mention in your letter, which I have edited for length and privacy, that you simply want to do the job you were given in your father’s will. But probate has already been granted here as I understand from you, anything up to two years or more ago. So, unless you are suggesting something was not done correctly or appropriately in managing the affairs of the estate – which is a serious assertion – I am not sure what is to be done at this point.
While anyone named as executor has the right to be involved in managing the estate of the person who has died, there is no obligation in Irish law as I understand it for all executors to apply jointly for a grant of probate. Any executor can do so. This is different from the issue of reserving or renouncing but, as long as everything is in order, the probate court will issue a grant of probate to any named executor.
You need to separate the issue of your hurt at how things played out from any suggestion of impropriety in how your father’s estate was handled
The second issue is whether you are challenging how the estate was divided. Is there some suggestion that it was not done in accordance with the terms of your father’s will?
I know you say your father’s solicitor did not send on documents you requested but, now that probate has been granted, your father’s will is a public document and you can apply to see a copy regardless of your sister, the solicitor or anyone else.
The bottom line is that I think you need to separate the issue of your hurt at how things played out from any suggestion of impropriety in how your father’s estate was handled. If probate was applied for correctly and your father’s assets distributed as he wished, there is nothing to be gained from stirring things up at this point.
However, if you believe you have grounds to suggest the estate was mismanaged or your father’s will not honoured, then you will need a solicitor and an appreciation that this could all cost an awful lot of money without any satisfaction.
If you still want to pursue that route, a first step might be to get our solicitor to request from your sister’s solicitor any document purporting to show you have reserved your right to act as an executor. Your quibble seems to start with that.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
