CONTESTING A WILL WITH WILL CLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – THE REMOVAL OF EXECUTORS AND PERSONAL REPRESENTATIVES
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss
the removal of Executors and Personal Representatives
What are Executors and Personal Representatives?
Executors and Personal Representatives generally mean the person or persons entrusted with
the administration of an estate of a deceased person. This can mean an “Executor” appointed
by a Will or where there is no Will, (“an Administrator”) under the rules of intestacy. In this
instance though we are solely concerned with the position after a Grant of Probate “proving”
a Will has been made (or after “Letters of Administration” have been issued) where there is
no Will.
For further reference it might be helpful for the reader to review the following:
No or improper Estate Administration – Will Claim Solicitors
The jurisdiction to remove Executors and Personal Representatives
In general, this is established by s. 50 of the Administration of Justice Act 1985:
Administration of Justice Act 1985 (legislation.gov.uk)
We have copied and pasted the full section below.
50 Power of High Court to appoint substitute for, or to remove, personal
representative.
(1)Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—
(a)appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or
(b)if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons.
(2)Where the court appoints a person to act as a substituted personal representative of a deceased person, then—
(a)if that person is appointed to act with an executor or executors the appointment shall (except for the purpose of including him in any chain of representation) constitute him executor of the deceased as from the date of the appointment; and
(b)in any other case the appointment shall constitute that person administrator of the deceased’s estate as from the date of the appointment.
(3)The court may authorise a person appointed as a substituted personal representative to charge remuneration for his services as such, on such terms (whether or not involving the submission of bills of charges for taxation by the court) as the court may think fit.
(4)Where an application relating to the estate of a deceased person is made to the court under subsection (1), the court may if it thinks fit, proceed as if the application were, or included, an application for the appointment under the M1Judicial Trustees Act 1896 of a judicial trustee in relation to that estate.
(5)In this section “beneficiary”, in relation to the estate of a deceased person, means a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate.
(6)In section 1 of the Judicial Trustees Act 1896, after subsection (6) there shall be added—
“(7)Where an application relating to the estate of a deceased person is made to the court under this section, the court may, if it thinks fit, proceed as if the application were, or included, an application under section 50 of the Administration of Justice Act 1985 (power of High Court to appoint substitute for, or to remove, personal representative).”.
The Court then has a discretion to remove and replace Personal Representatives on application by a Personal Representative or by a beneficiary of the deceased.
When will the Court exercise its discretion to remove an Executor or Personal Representative?
The touchstone appears to be what is in the interests of the beneficiaries of the estate as a whole (see paragraph 60 of the recent decision in Karen Lane v Susan Dorothy Lane and others [2024] EWHC 275 (Ch)) where Jonathan Hilliard KC provides the legal test as follows:
The legal test
60. s.50 of the Administration of Justice Act 1985 gives the Court the power in its discretion to appoint a person to act as personal representative in place of the existing personal representative. In the same way that the supervisory jurisdiction of the Court in relation to trusts is exercised to further the interests of the trust in question as a whole, so the touchstone under s.50 of the Administration of Justice Act is what is in the interests of the beneficiaries of the estate as a whole. Those principles were set out in Letterstedt v Broers (1884) 9 AC 371 (PC) in the trust context and in Thomas & Agnes Carvell Foundation v Carvell [2008] Ch 395 Lewison J (as he then was) accepted that the same principles applied under s.50.
The commentary of Lewison J (as he then was) in Thomas & Agnes Carvell Foundation v Carvell [2008] Ch 395 is cited with approval (paras 43 to 47):
Discretion
43. Having held that I have jurisdiction, the next question is whether I should exercise it in the Foundation’s favour. I should say that Carvel-Florida opposes the application. It says that Pamela has proved to be a doughty champion of Agnes’ estate and that another personal representative would not have her tenacity. Pamela herself also opposes the application.
44. It is common ground that, in the case of removal of a trustee, the court should act on the principles laid down by Lord Blackburn in Letterstedt v Broers (1884) 9 App Cas 371, and that in the case of removing a personal representative similar principles should apply. Whether I am right in concluding that Pamela is a trustee; or whether she is no more than a personal representative, the principles are therefore the same. At page 386 Lord Blackburn referred with evident approval to a passage in Story’s Equity Jurisprudence:
“But in cases of positive misconduct, Courts of Equity have no difficulty in
interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.”
45. He continued:
“It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is
constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.”
46. The overriding consideration is, therefore, whether the trusts are being properly executed; or, as he put it in a later passage, the main guide must be “the welfare of the beneficiaries”. He referred to cases in which there was a conflict between trustee and beneficiary and continued:
“As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.”
47. He added, however, at page 389:
“It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded.”
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