Court settles brothers’ dispute over administering mother’s will
A man has been removed as an executor of his mother’s will after his brother complained that he was obstructing the administration of the estate.
The case involved three brothers; two of them were executors of her will.
Following several years of disagreement, one of the brothers raised a petition seeking the removal of the other as an executor.
The petitioner and the respondent in the case lived in the Edinburgh area and the third brother lived in Berlin.
The deceased had lived for some time in a flat in London. In 2012, she decided to move to Scotland.
To provide her with funds to buy a flat in Edinburgh, the Berlin brother bought a half share of her London property. Thereafter, he and the mother rented the flat in London to tenants through a letting agent and divided the net proceeds equally.
Using the proceeds of sale of half of the London flat, the mother bought a flat in Edinburgh. She died in September 2017 and left a will appointing the petitioner and the respondent as her executors.
Initially, they had worked amicably together to try to work out the best way of dividing the remaining assets in the estate between them, but they were unable to reach an agreement and in 2018, their relationship started to deteriorate.
The respondent took up residence at the mother’s Edinburgh property from October 2018 to July 2020 without the petitioner and the Berlin brother ‘s agreement, and without paying rent to the estate, whilst he rented out his own flat.
He also unilaterally disposed of the contents of the Edinburgh property and attempted to divert proceeds of rent from the London property directly to himself on three different occasions.
The continuing disagreements between the brothers meant that the estate remained undistributed more than three years after the mother’s death.
The court granted the petition.
It noted that the executors had been unable to make progress on distributing the estate due to ongoing disagreements between them.
There was deadlock and continuance of the co-executor arrangement would prevent the estate from being properly administered. The intervention of the court was clearly warranted.
Executors would not be removed lightly, and there needed to be more than mere irregularity or illegality, but the respondent’s actions amounted to malversation of office, and the legal test for his removal was met.
The respondent was removed from office, and the petitioner would continue as sole executor.
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Ciarrocca v Ciarrocca
Court of Session (Outer House)
Judgment Date
2 June 2021
Lady Poole