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What Is The Defining Legal Case For Removing An Executor?

Posted: Wednesday, 18 January 2023 @ 10:16

Recently I have been in the High Court twice on removal of Executor cases and on both occasions the Judges and the lawyers placed one legal case at the forefront of the legal analysis for determining if the Executor should be removed.

That legal case is no other than Harris v Earwicker, 2015 WL 4275082 (2015) and the words of Chief Justice Marsh at paragraph 9.:

Here is the key wording of the passage:

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 is 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.

Before you attend Court and represent your clients you submit a Skeleton Argument on behalf your clients. Any lawyer doing their job will be both quoting the above passage and ensuring the case is structured in such a way to cover these points.