Posted: Monday, 13 November 2023 @ 10:12
Unlike most areas of High Court litigation the legal area is quite narrow and clearly defined in removal of executor cases The key legislation and case law referenced in a removal of executor case is as follows:
A legal claim for removal is made under s50 of Administration of Justice Act 1985 where the Power of High Court is 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
(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.
In addition, Harris v Earwicker, 2015 WL 4275082 (2015) –
The words of the then Chief Justice Marsh at Paragraph 9:
A modern statement of the basis upon which this power may be exercised can be found in the
judgment of Lewison J (as he then was) in Thomas & Agnes Carvel Foundation  Ch 395 [44- 47]
based upon the leading authority on Letterstedt v Broers (1894) 9 App Cas 371 . There is also a
helpful explanation of the court's role in Williams, Mortimer & Sunnucks – Executors, Administrators
and Probate (2008 Edition) at 60–14.
The relevant principles for the purposes of this application may
be summarised in the following way:
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 are 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.
Court’s discretion as to costs 44.2
(1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful
(b) the court may make a different order.