When making a will, many people often fail to fully appreciate the importance of choosing the right executors to administer their estate. There are two considerations to bear in mind. First, it is advisable to choose someone you trust and someone who has a good understanding of how you would wish your assets to be administered. The second consideration, which is often overlooked, is that the person chosen should not have any potential conflict of interest. The importance of this latter consideration was brought to the fore recently in the administration of the estate of the developer, Brian Rhatigan deceased. 

In the Rhatigan case the executrix was the deceased’s solicitor and she had acted on his behalf in connection with numerous complex transactions. Following Mr Rhatigan’s death, the transactions became central to the various claims made in relation to his estate. Laffoy J considered the executrix to be conflicted in her professional capacity from acting as executrix. Accordingly, the High Court held that some other person would need to be appointed in her place.

The courts are generally reluctant to remove a person who has been appointed as an executor under a will and to appoint some other person in his place. Such a step is not justified simply because a beneficiary is frustrated. Evidence of serious misconduct or serious special circumstances is necessary before a court will take such a drastic step. Being conflicted in a professional capacity was considered a serious special circumstance in the Rhatigan case. Laffoy J acknowledged that the solicitor clearly wished to fulfil the task that the deceased had given to her, but the judge was of the view that it would be impossible for her to do so in a non-conflicted capacity.

Acting as a solicitor or in some other professional capacity for a person during his lifetime will not automatically result in a professional conflict post-death. In the Rhatigan case, there were particular issues arising due to the nature of the claims being made against the estate. However, the judgment clearly demonstrates the necessity, when choosing appropriate executors, to carry out a very detailed analysis of the type of issues that might arise post-death and the level of potential for conflict. Only after such a careful analysis can a person be confident that he has appointed the right persons to the role. 

Contributed by Nora Lillis

Back to Legal News