There is a wide range of circumstances, both contentious and non-contentious, as to why the Courts might need to intervene in terms of removing a Personal Representative (e.g. an Executor, Administrator) of a deceased estate. These include:
- A dispute between the Beneficiaries and the appointed Personal Representative;
- A conflict of interest between the Personal Representative’s interests and their obligations to the estate; and
- An unwillingness by the Personal Representative appointed to act, or a delay in the Personal Representative doing so.
If there is no dispute in respect of the Personal Representative being removed, as long as they have not intermeddled in the estate, they can simply waive their right to be appointed as Personal Representative. Intermeddled has no definition and will apply differently in each case, dependent on the circumstances, but it essentially means that the Personal Representative has taken steps to start to administer the estate.
If a Personal Representative has intermeddled or if there is a dispute as to whether they should be removed or not, there are two relevant statutory provisions that can be deployed:
- Section 116 of the Senior Courts Act 1981; and
- Section 50 of the Administration of Justice Act 1985.
Section 116 confirms that:
‘If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with the probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.’[emphasis added]
The wording of section 116 highlighted above clearly gives the Court a wide discretion as to whether to remove a Personal Representative or not. It is accordingly wide enough to remove a Personal Representative by agreement, once they have intermeddled.
In the judgment in Re Clore, Decd (1982), Ewbank J said:
“…I would not impose any limitation on the words “special circumstances”. I would say that the words “special circumstances” are not necessarily limited to circumstances in connection with the estate itself or its administration, but could extend to any circumstances which the court thinks are relevant, which lead the court to think that it is necessary, or expedient, to pass over the executors.”
The fact that the section includes reference to “the person who…would…have been entitled to the grant” makes it clear that section 116 may only be deployed prior to a grant of probate having been extracted by the Personal Representative.
Where section 116 is not appropriate (for example if a grant has been extracted), section 50 must be deployed.
Section 50 confirms:
“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.’ [emphasis added]
The first point to note is that the Court’s power is not limited by any need for “special circumstances”. The Court has complete discretion to whatever order it sees fit. The first limitation is however, highlighted above. If an individual does not fall within the category of Personal Representative or beneficiary of an estate, they have no standing to make an application under section 50.
Although the jurisdiction in Letterstedt v Broers (regarding the Court’s inherent jurisdiction to remove trustees) is not invoked directly, the principles from the line of cases deriving from Letterstedt v Broers are relevant. These were distilled in Harris v Earwicker by Chief Master Marsh (referring to the commentary of Lewison J in Carvel) as follows:
“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?
- 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.
- 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.
- 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.
- 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.”
In summary, the Court’s powers to remove a Personal Representative involve a large degree of discretion, the net effect of which is that the devil will definitely be in the detail in respect of whether an application will be successful or not, and in this regard each case will turn on its own facts. The application process itself is reasonably complex and there is definitely latitude for applications to go wrong if expert advice is not sought early on.
Should you wish to discuss the removal of a Personal Representative or defending such an application, please get in touch with Kevin or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.