Posted: Tuesday, 26 August 2025 @ 09:28
Plan
A successful removal of executor application entails months
of planning and execution unless you have cast iron evidence of fraud (have you
considered instructing a forensic accountant?) and essentially once you have a
paper trail of correspondence you should be good to go. Remember the key aspect
of this kind of application is the need to frontload the work. Essentially your
goal is to create a compelling case within the proceedings to remove the
executor. If you cannot do this within the original claim form and supporting
statement you are wasting your time.
Use E-filing
If you have a situation where you are involved in a possible
removal of executor case and you end up issuing the case in the High Court
Business and Property Courts you have the potential to have your claim heard
promptly.
Due to the efficiency of E-Filing a removal of executor is a
very appealing Court forum to be heard but there are a number of variables to
consider before embarking on this course of action. After all, it is such a
draconian step to be taken.
Some variables to consider on prospects of success:
1. Time can
be an important variable but you can issue too soon. Has one year elapsed since
the Deceased died and is the Executor justified in delaying distribution?
2. Do you
have any specific indication poor conduct from the Executor and how have you presented
such evidence?
3. Has the
Executor ignored any previous Court orders and correspondence from you. To what extent have you complied with the
CPR?
4. Do you
need the Executor to be replaced to ensure that the estate will be distributed?
5. Are there
reasons why your proposed replacement executor is not suitable?
6. Are there
any weaknesses in your case and can they
be mitigated?
Consider defining law
We cover this below but at time of writing the defining law
for a removal of executor case(assuming you are making a Section 50
application) is the Earwicker case and the passage of Chief Justice Marsh and
Paragraph 9. We reference that brief
passage below but it is critical that you have
an understanding of that passage. It is so influential in how you
conduct a removal of executor case.
With cases of these kind, it is really worth stepping back
and establishing if the executor can be removed. It is very easy to get sucked
into the emotion of the situation and form judgments either against or for the
complaining party.
Generally, this type of application is used to remove a
personal representative where the Grant of Probate has already been taken.
Do you want to use Section 50 of the Administration of
Justice Act 1985 to remove the Executor?
You have some other options.
Renounce? You can explore getting the
Executor to renounce.(provided intermeddling has not taken place).
Citation?
Where named executors refuse to take steps to obtain a Grant
but will also not renounce their rights, it is possible to force their hand by
using the citation process.
Section 116(1) of the Senior Courts Act 1981? (SCA 1981)?
This can apply pre a grant of probate being obtained but I
rarely use this.
The law provides that: ‘If by reason of any special
circumstances it appears to the High Court to be necessary or expedient to
appoint as administrator some person other than the person who, but for this
section, would in accordance with the probate rules have been entitled to the
grant, the court may in its discretion appoint as administrator such person as
it thinks expedient.’
Here, the court has the power to pass over an executor even
if they have intermeddled in the estate. An executor who can no longer renounce
their appointment but wishes to be passed over in favour of another may
therefore have recourse to an application under SCA 1981, s 116.
The Non-Contentious Probate Rules 1987, SI 1987/2024, r 52
states that an application for an order under SCA 1981, s 116: ‘…may be made to
a [district judge or] registrar and shall be supported by an affidavit [or
witness statement] setting out the grounds of the application.’
Section 41 of the Trustee Act 1925?
If none of these provisions gives the dissatisfied
beneficiary a remedy one can consider s41 of the Trustee Act 1925, where the
court may make an order appointing a new trustee or new trustees either in
substitution for or in addition to any existing trustee or trustees. Trustee
includes personal representative for this purpose.
Explore offers
Consider making an Open Offer
On a removal of executor case a tactic I sometimes use is to
make an open offer to the other side e.g. I provide three names of professional
executors, give the Defendant(s) of choice and say that you will not seek costs
against them(e.g. out of the Estate).
This may make your client look more reasonable before the Judge.
What is the defining law?
The Law of Section 50 of the Administration of Justice
Act 1985
Generally, the go-to-legislation is that of Section 50 of
the Administration of Justice Act 1985 which states:
Power of High Court to appoint substitute for, or to remove,
personal representative.
Whether a section 50 application will succeed is a matter
for the discretion of the court and that the overriding considerations are
broadly the proper administration of the estate and the welfare of the
beneficiaries.
The statute itself provides no guidance as to the test to be
applied by the court when exercising its discretion. There is a case law on the
issue.
Nonetheless, given the very fact specific nature of these sorts of
disputes, the outcome of an application can be difficult dependent on the
lawyer to think through the evidence and plot a course of success.
It is not necessary to establish wrongdoing or fault on the
part of the executor. The court will generally replace an executor where, for
example, relations between him and the beneficiaries have simply broken down to
such an extent that it is no longer possible to progress the Estate.
By far the most important case within the removal of
executor forum is the Harris v. Earwicker [2015] EWHC 1915 (Ch).
A critical summary of principles by Chief Master Marsh at
paragraph 9.
i. It is unnecessary for the court to find wrongdoing or
fault on the part of the personal representatives. The guiding principle is
whether the administration of the estate is being carried out properly. Put
another way, when looking at the welfare of the beneficiaries, is it in their
best interests to replace one or more of the personal representatives?
ii. If there is wrongdoing or fault and it is material such
as to endanger the estate the court is very likely to exercise its powers under
section 50 . If, however, there may be some proper criticism of the personal
representatives, but it is minor and will not affect the administration of the
estate or its assets, it may well not be necessary to exercise the power.
iii. The wishes of the testator, as reflected in the will,
concerning the identity of the personal representatives is a factor to take
into account.
iv. The wishes of the beneficiaries may also be relevant. I
would add, however, that the beneficiaries, or some of them, have no right to
demand replacement and the court has to make a balanced judgment taking a broad
view about what is in the interests of the beneficiaries as a whole. This is
particularly important where, as here, there are competing points of view.
v. The court needs to consider whether, in the absence of
significant wrongdoing or fault, it has become impossible or difficult for the
personal representatives to complete the administration of the estate or
administer the will trusts. The court must review what has been done to
administer the estate and what remains to be done. A breakdown of the
relationship between some or all of the beneficiaries and the personal
representatives will not without more justify their replacement. If, however,
the breakdown of relations makes the task of the personal representatives
difficult or impossible, replacement may be the only option.
vi. The additional cost of replacing some or all of the
personal representatives, particularly where it is proposed to appoint
professional persons, is a material consideration. The size of estate and the
scope and cost of the work which will be needed will have to be considered.