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Legal loophole – can you force an Executor to resign where they are convicted of murdering the deceased.

Recently we have been in the unfortunate situation of having to advise the family of a murder victim that the person convicted of the murder is appointed to act as the Executor to the victim’s estate. Many other families of murder victims in Scotland have been surprised and shocked to learn that the convicted killer of their loved one can act as the Executor to the estate of their victim. Whilst an Executor can not change the terms of a Will and a convicted murderer can not inherit from their victim’s estate, the Executor does have power to make decisions about the management and distribution of the property of the deceased, depending on the terms of the Will.

Whilst the conviction of a person does preclude them from inheriting from their victim’s estate, there is no currently no corresponding law in Scotland precluding them from acting as Executor in relation to the estate of their victim.

It is not difficult to appreciate how this unfortunate situation can lead to turmoil for the family of the murder victim where a convicted killer can make decisions about the estate of their victim, often in relation to items of huge personal and sentimental value to the rest of the family.

In England, Under common law in England and Wales, there is a long established position known as the forfeiture rule by which someone convicted of murder or manslaughter cannot inherit from their victims. A similar rule, often referred to as the slayer rule, exists in the USA.

The English rule of forfeiture also used to cut out the killer's descendants from the line of succession while the killer was still alive because of an anomaly in the rules of intestacy.

So can nothing be done?

The Executor can be asked to resign. If they agree and they are sole Executor, they would need to assume another Executor before resigning. If they are not the sole Executor, they can resign and the other Executor/s would carry on in their role/s. However, if the Executor refuses to resign, it is sometimes possible to raise a legal action in the Court of Session to have an executor removed.

A co-executor or beneficiary can apply to the Court of Session for the removal of an Executor who is

  • insane, incapable of acting because of physical or mental disability
  • absent from the UK for a continuous period of at least six months or who has disappeared for a similar period.

If neither of these apply, the Court of Session also has a common law jurisdiction to remove an Executor who, as an individual, has an interest which is clearly incompatible with his duties as Executor. However, having an adverse interest would not itself justify removal in every circumstance and as the Executor is not also a beneficiary in these circumstances, as bizarre as it may seem, it may be difficult to prove an adverse interest. Raising an action in the Court of Session against an Executor is extremely costly and there would be no guarantee of success.

Earlier this year, the family of a woman from Fife murdered by her son called for a change in the law in this regard.  Under the victim’s Will, she appointed her son as Executor. His conviction in 2015 meant he could no longer inherit from her estate, despite being named as a beneficiary in her Will, however under the current law, he remained as the Executor of the deceased’s estate. The convicted man has refused to resign as Executor and has denied other family members access to their deceased’s property to collect sentimental items such as family photographs. The family of the murder victim have said that they do not have the funds to raise an action in the Court of Session and have instead urged the Scottish government to close the legal loophole that allows this situation to occur. They have set up a petition on seeking support for a change to the law to prevent convicted killers from being able to act as executor for the estate of their victims. There are almost 18,000 signatures on the petition to date.

For help and advice in relation to Executry estates, please contact our Private Client Team.

Blog by Shona Geddes, Solicitor

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