There are occasions when it may be desirable to make an application to court to remove or replace a personal representative. For example, a personal representative’s conduct may be preventing the proper administration of the estate.
The court has power to remove personal representatives under the following statutory provisions:
- Section 116 of the Senior Courts Act 1981.
- Section 50 of the Administration of Justice Act 1985.
- Section 1 of the Judicial Trustees Act 1896.
- Section 41 of the Trustee Act 1925.
The two most widely used provisions are Section 116 of the Senior Courts Act 1981 (which is used to remove a personal representative prior to the taking of a Grant of Probate) and Section 50 of the Administration of Justice Act 1985 (which is generally used to remove a personal representative after the Grant of Probate has been taken out).
Section 116 of the Senior Courts Act 1981
This is the correct jurisdictional basis to remove a personal representative prior to the Grant of Probate.
In “special circumstances”, the court has the power to pass over a personal representative. The court will take a broad view of what constitutes “special circumstances” and in Holtham v Arnold (1986) 2 BMLR 123, J Hoffman suggested that s116 was “concerned with the proper and efficient administration of the estate”.
The court has a wide discretion as to how its jurisdiction should be exercised and in A-B Dodds [2010] WTLR 931, J Coleridge warned that passing over of a personal representative was not to be undertaken lightly. Good reasons need to be shown before a personal representative will be passed over.
Specific examples of where a personal representative may be passed over include:
- Where they are serving a sentence of imprisonment which means it is not possible for them to administer the estate (In the Estate of S, decd [1968] P 302).
- Where the personal representative has disappeared and cannot be traced (In the Goods of Crawshay [1893] P 108 and Re Williams [1918] P 122).
- Where the personal representative is mentally unfit to carry out the administration of the estate (In the Goods of Atherton [1892] P 1040).
- Where there has been undue delay in applying for the Grant of Probate (In the Goods of Ray (1926) 96 LJP 37).
- Where the personal representative has interests which are adverse to those of the estate (Budd v Silver (1813) 2 Phill 115 and Re Paine decd (1916) 115 LT 935).
I would point out that there are no hard and fast rules which have been laid down by the court in respect of when a s116 application will succeed. However, as a general rule, an application to have a personal representative removed is likely to succeed where their appointment would threaten the proper administration of the estate.
Section 50 of the Administration of Justice Act 1985
Generally, this type of application is used to remove a personal representative where the Grant of Probate has already been taken. However, in Goodman v Goodman [2013] EWHC 758 (Ch), the High Court held that the court’s powers under s50 of the Administration of Justice Act 1985 can be exercised before a Grant of Probate has been obtained.
Section 50 of the Administration of Justice Act 1985 enables the High Court to do the following:
- Appoint a new executor in place of an existing executor.
- Appoint a new administrator in place of an existing administrator.
- Appoint a new administrator in place of all existing personal representatives.
- Terminate the appointment of a personal representative without replacing them, provided that this leaves at least one existing personal representative in place.
Applications under s50 can be made not only where there is a conflict between the personal representatives but also where one wants to retire.
Section 50 does not explain in what circumstances the court should exercise its powers of substitution or removal. However, case law has demonstrated that the court’s main concern in exercising its jurisdiction will be the welfare of the beneficiaries and the proper administration of the estate. The court does not have to find any active misconduct by a personal representative in order to remove them and will exercise its discretion pragmatically, having regard to the views of the beneficiaries of the estate as a whole.
Section 1 of the Judicial Trustees Act 1986
The court can at its discretion appoint a judicial trustee and the procedure is governed by the Judicial Trustee Rules 1983. This is not a particularly attractive option as, amongst other reasons, the court has no power if the action is opposed unless there is evidence of improper behaviour by the trustees.
Section 41 of the Trustee Act 1925
Under s41 of the Trustee Act 1925, the court may make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees. Trustee includes personal representative for this purpose.
It is also worth mentioning that if a personal representative has not intermeddled in the administration of the estate, he can renounce his right to probate. This is more cost effective and quicker than making an application to court, although it can only be used where the personal representative is willing to give up his right to take probate and has not intermeddled.
Paul Davis is a solicitor at BHW Solicitors in Leicester and regularly writes and advises on contentious probate matters. Paul can be contacted on 0116 281 6231 or at paul@bhwsolicitors.com.