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What Is The Defining Law For A Removal of Executor Claim?

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 person, then— 

(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 [2008] 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.

CPR 44.2 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 party; but (b) the court may make a different order.