Disputed Wills – New Law Society Practice Guidance and a Salutary Executor Removal Case

By Michael Henry

Senior Associate

Practice Note

Recently on 5 September 2023, the Law Society published an updated version of its practice note: “Disputed wills: guidance for practitioners”. The Practice Note is concerned with the disclosure of information relating to the circumstances surrounding the preparation and execution of a disputed will.

A copy of the updated Practice Note can be downloaded from https://www.lawsociety.org.uk/topics/private-client/disputed-wills (you will need to have your ‘My LS’ account login details handy to access).

The updated note has expanded the section on the risks of acting in disputes if the firm taking on the claim (or defending it) also drafted the will or is acting as executor. The section now includes references to SRA Principles and the relevant parts of the SRA Code of Conduct on conflicts of interest.

Case Law

Reading this updated Practice Note has brought to mind the case law judgment in the recently published court decision of Bowser v Smith & Anor (Re Estate of Ian John Smith) [2023] EWCA Civ 923 (01 August 2023)

It is a cautionary tale that highlights the risks to an executor in aggressively pursuing an application for the removal of a co-executor, the need to resort to such litigation as a last resort, and the importance of good practice at the pre-action stage of litigation.

The solicitor, Mr Bowser, as one of the original executors of the Will (a solicitor in the firm which had acted for the Testator when he made the Will), had aggressively sought the removal of the other executor, Julie Smith, (who was the Testator’s estranged wife, and later widow, and the mother of their ten children). 

Bowser lost his appeal against a costs order made against him. He was ordered to pay Smith the costs of the claim. The order also barred him from recovering his costs from the estate because his conduct was not a ‘reasonable and proper exercise’ of his powers as a personal representative. He had, in error, believed there was a conflict of interest in Smith’s role as executor as she was also a potential claimant against the estate under the Inheritance (Provision for Family & Dependants) Act 1975.

The Court found that Smith had not been conflicted because of her intended claim, approving commentary in the leading textbooks to the effect that an executor can also be a claimant under the 1975 Act without necessarily having to stand down, provided they can keep the two capacities distinct.

Early in the matter, Smith had offered to be replaced as executor should Bowser also agree to be replaced by an independent PR. Smith had concerns, well-founded it ultimately transpired, that because of Bowser’s historic involvement with transactions involving the deceased, it was not appropriate that Bowser continue as sole executor. What happened, and the reason why Mr Bowser had been penalised in costs, was that with some encouragement from the Judge, an agreement was quickly reached at the first hearing that both the existing executors should be replaced, and a suitable independent professional was identified. Effectively, Bowser only dropped at trial the position he had previously maintained that he should remain as a sole executor with only Smith to be removed.

Paragraph 70. – 71. of the costs judgment records a vital aspect.

70. “One of the criticisms made by the Judge of Mr Bowser’s conduct was that he failed to apply for Beddoe relief before initiating proceedings to remove his co-executor. It is indeed true that he did not do so, nor is there any indication in the correspondence or his evidence that he ever gave any consideration to the possibility. Had he done so, it would quickly have become apparent that the making of such an application (seeking the approval of the court to the bringing of such proceedings, and a consequential indemnity for his proper costs in doing so) would itself have been a substantial undertaking. A Beddoe application has to be made in separate proceedings, to which the beneficiaries are joined as parties, and the court then has to form a view whether it is for their benefit that the proceedings should be prosecuted. For that purpose, it would have been necessary to obtain representation of the minor children, and to instruct counsel to advise on their behalf: see generally Alsop Wilkinson v Neary [1996] 1 WLR 1220 at 1225G – 1226E (Lightman J). In other words, the procedure would itself have been an expensive and time-consuming exercise, and before embarking upon it Mr Bowser should have carefully considered whether the circumstances were really such as to justify the commencement of hostile litigation by him against his co-executor.

71. Furthermore, had Mr Bowser then decided against making a Beddoe application, it would have brought home to him that, if he decided to proceed without the protection of such an order, he would be doing so at his own risk as to costs, and that if he was to be indemnified for his costs out of the estate, he would need to show that he had acted reasonably and properly in pursuing the litigation.”

Case link to the full report: Bowser v Smith & Anor

The moral of the story

Both the Law Society Practice Note and the recent court judgment highlight the risks of solicitors acting in disputes if the firm taking on the claim or defending it also drafted the will or is acting as executor.

If you would like to discuss anything mentioned in this article, please call our specialist team of Will and Trust Dispute Lawyers on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be very happy to assist.