Posted: Friday, 17 April 2020 @ 10:44
If all other
attempts have failed, and the administration is not progressing to the
beneficiaries’ satisfaction, you could consider applying for the executor to
be removed or replaced under s. 50
of the Administration of Justice Act 1985.
This should be
a last resort due to the legal costs involved.
A case in this
respect is Heyman v Dobson  EWHC 3503, where a residuary beneficiary
brought an application under s.50 having been unable to obtain any response
from the executor to requests for information regarding the estate. The case is
a useful starting point when considering a s.50 application since the judgment
reviews the little authority that exists in this context.
Whether a s.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.
It is not
necessary to establish wrongdoing or fault on the part of the executor.
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 administration of the estate properly.
In the case of
Goodman v Goodman  All ER 118 which involved an appeal against a decision
to remove an executor under s.50 Administration of Justice Act 1985.
rationale for the appeal was that the incorrect procedure had been used by the
claimants. As this was an application to remove an executor before the grant
had been obtained, it was argued that the procedure under s.116 Senior Courts
Act 1981 should have been used. The appeal failed.
save in cases of actual wrongdoing or fraud (such as in Alkin v Raymond the courts are
very reluctant to remove personal representatives. The overriding principle
remains that the court will only remove an executor if it is in the interest of
the proper administration of the estate and would promote the welfare of the
beneficiaries, which will depend upon the peculiar facts of each case.
What is the procedure?
If a s.50
application is not being made in the course of existing proceedings, it should
be brought in the Chancery Division of the High Court using a Part 8 Claim
Form, and supported by written evidence (see CPR Part 57).
If there is
more than one executor, the others must all be joined as parties, often
together with the residuary beneficiaries. If a sole executor is being removed,
a substitute should be sought otherwise the estate will be left unrepresented.
under section 50 are governed by the Civil Procedure Rules r.57.13 and
paragraphs 12–14: and must be brought in the High Court;
applications will be assigned to the Chancery Division;
representative of the estate shall be joined as a party;
The Court Fee
is £528 within the High Court.