Posted: Friday, 31 March 2023 @ 12:50
The step of removing an executor is a dramatic one and one the Court does not take lightly. Here are some pointers which may help.
it is worth perhaps considering the following:
1. Has one year elapsed since the Deceased
died and is the Executor justified in delaying distribution? (e.g. are you
being too hasty?)
2. Do you have any indication of fraud
from the Executor?
3. Has the Executor ignored any previous
Court orders and correspondence from you?
4. Have you got a paper trail of
correspondence illustrating that the Executor is simply not capable or
interested in distributing the Estate in a correct way?
5. Have you done a Letter Before Action?
6. Are there reasons why your proposed
replacement executor is not suitable? E.g.
Are there any weaknesses in your
client’s case and can they be mitigated?
7. Will a Replacement Executor make things
8.What are the Professional Fees of
a Replacement Executor and Will They Erode the Estate?
kind of cases, 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.
alternatives to commencing an application including:
application Inventory and Account
Part 64 Application which can focus on obtaining documents.
option is PRE-Action disclosure applications though the courts are becoming
increasingly reluctant to order pre–action disclosure and unsuccessful
applicants are often left facing a costs bill as a result. From my point of view this kind of application
would be a last resort.
you have set the ball rolling there are a number of dos and do nots to
for removal of executor(though there are other options) are under Administration of Justice Act 1985,
50(1) provides: “(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.”
Do Your 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.
personal representative of the estate shall be joined as a party.
It is made under
a part 8 Claim Form.
application must be supported by the following:
• A certified sealed copy of the Grant
of Probate or Letters of Administration.
• A witness statement setting out the
reasons why the removal or substitution of the Executor is sought (referring to
• A witness statement of the proposed
substitute’s executor’s capacity to act
• Draft order
The Witness Statement include?
exhibit the will and probate of the Deceased. This is the critical document
which will make or break your case. It needs to be both comprehensive and
succinct and consist of a compelling case why the Executor should be removed
and the suitability of the proposed replacement executor.
A key aspect
of a removal of executor case is that you are front-loading your Claim namely that
your client’s evidence is set out within the Claim form and accompanying statement(s).
You need to set out a compelling case for removal but there are also legal formalities
which need to be dealt with too.
it is good practice to print off the relevant CPR Rule namely Part 57 and the relevant
Practice Direction as this contains what needs to be in the Claim and the Witness
Statement this is quite easy to neglect and saves you and your client from potential
judicial criticism later.
You should should
your claim contain evidence of Probate (if
it has been issued) and a copy of the will?
you provided brief details of the property comprised in the estate, with an
approximate estimate of its capital value and any income that it has received?
details of the liabilities of the estate;
names and addresses of the persons who are in possession of the documents
relating to the estate;
names of the beneficiaries and their respective interests in the estate;
name, address and occupation of any proposed substituted personal
For the appointment
of a substituted personal representative, the claim form must be accompanied by
signed or (in the case of the Public Trustee or a corporation) sealed consent
to act; and Written
evidence as to the fitness of the proposed substituted personal representative,
if an individual, to act.
point on the suitability of the substitute Personal Executor is critical.
Your Skeleton Argument and The Key Law
case does head to Trial from experience many Judges are heavily influenced by
the Skeleton Argument (and may have formed an initial view by the time you appear
in Court on certain cases) which you will
submit days before the hearing.
you need to ensure that you have marshalled all your arguments effectively and
you leave nothing to chance.
of executor cases you must refer to the legislation at Section 50 and there is
a key case which is must be covered namely, Harris v Earwicker, 2015 WL 4275082
(2015) and the words of the then Chief Justice Marsh at paragraph 9;
9 which is succinct includes coverage of the following:
guiding principle is whether the administration of the estate is being carried
out properly. 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.
wishes of the testator, as reflected in the will, concerning the identity of
the personal representatives is a factor to take into account.
wishes of the beneficiaries may also be relevant.
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.
court must review what has been done to administer the estate and what remains
to be done.
additional cost of replacing some or all of the personal representatives