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What Are the Dos and Do Nots of Removing Executors?

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.   

Consider Variables:

Before commencing, 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 better?

8.What are the Professional Fees of a Replacement Executor and Will They Erode the Estate?

With these 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.

Have You Considered Alternatives?

There are alternatives to commencing an application including: ·        

  • An application Inventory and Account ·        
  • CPR Part 64 Application which can focus on obtaining documents. ·       
  • Another 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.

However once you have set the ball rolling there are a number of dos and do nots to consider.

Do Your Pre-Case Preparation

Most cases for removal of executor(though there are other options)  are under Administration of Justice Act 1985, s.50: Section 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.

Applications under section 50 are governed by the Civil Procedure Rules r.57.13  and PD57, paragraphs 12–14: and must be brought in the High Court.

All applications will be assigned to the Chancery Division. Every personal representative of the estate shall be joined as a party.

It is made under a part 8 Claim Form.

The 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 his disqualification)

•          A witness statement of the proposed substitute’s executor’s capacity to act

•          Draft order

What Should The Witness Statement include?

It should 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.

From experience 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 ensure:

  • Does your claim contain evidence of Probate (if it has been issued) and a copy of the will? 
  • Have 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?
  • Brief details of the liabilities of the estate; ·        
  • The names and addresses of the persons who are in possession of the documents relating to the estate; ·        
  • The names of the beneficiaries and their respective interests in the estate;
  • The name, address and occupation of any proposed substituted personal representative.

For the appointment of a substituted personal representative, the claim form must be accompanied by – A 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.

This latter point on the suitability of the substitute Personal Executor is critical.

Focus on Your Skeleton Argument and The Key Law

Once your 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. Given this, you need to ensure that you have marshalled all your arguments effectively and you leave nothing to chance. Within removal 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;

Paragraph 9 which is succinct includes coverage of the following: ·        

  • The 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.
  • The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account.
  • The wishes of the beneficiaries may also be relevant.
  • 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.
  • The additional cost of replacing some or all of the personal representatives