The Removal of Personal Representatives By Nathan Wells, Barrister, Radcliffe Chambers (London)

by Nathan Wells, Barrister, Radcliffe Chambers (London)

14-12-2015

There are many possible reasons why, following the death of a testator or intestate, it may be considered appropriate for an interested party to seek the removal of the deceased’s personal representative(s). The personal representative may have disappeared, there may be concerns about their physical and/or mental fitness for the task of administration, they may be guilty of unreasonable delay in the conduct of the administration, and so on. There are two principal jurisdictions governing the removal of personal representatives.

Section 116 of the Senior Courts Act 1981 establishes the “passing over” jurisdiction. The section provides that if, by reason of any special circumstances, it appears to the High Court to be necessary or expedient to grant administration to someone other than the party who would be entitled to the grant in accordance with probate rules (i.e. a named executor or, in the case of an intestacy, the person(s) entitled to a grant in accordance with r 22(1) of the Non-Contentious Probate Rules 1987) then the Court may in its discretion appoint as administrator such person as it thinks expedient.

Such applications are normally brought in the Family Division as non-contentious probate business. The application may be made to a district judge or registrar, and must be supported by an affidavit setting out the grounds of the application (see r 52 N-CPR 1987). The application may be made without notice in an appropriate case, but where it is likely to be contentious it should be made by summons, on notice to the other interested party or parties (see the Court’s observations in Ghafoor v Cliff [2006] 2 All ER 1079). The authorities have, for the most part, indicated that the section gives the Court a wide jurisdiction: see, for example, In re Clore decd [1982] Fam 113 and, more recently, Khan v Crossland [2012] WTLR 841.

Accordingly, personal representatives have been passed over in a wide variety of circumstances, from cases where the representative is serving a long sentence of imprisonment (In the Estate of S, decd [1968] P 302) to a case where the potential representative was “a dissipated man, who was mismanaging a public house which was part of the estate, and of which he refused to give up possession” (In the Goods of Ardern [1898] P 147).

Section 50 of the Administration of Justice Act 1985 gives the High Court jurisdiction to terminate the appointment of a personal representative and/or to appoint a substitute in place of an existing personal representative. The application can be made by or on behalf of a beneficiary of the estate or one of the other personal representatives. Such claims must also be brought in the High Court but they are assigned to the Chancery Division (see CPR r 57.13(2)). The section itself does not set down a test for removal/substitution, but the authorities have confirmed that the Court’s main concern will be the interests of the beneficiaries and the proper administration of the estate. A useful summary of the relevant test might be found at paragraph 80 of Sales J’s decision in National Westminster Bank plc v Lucas [2014] WTLR 637: a personal representative might be removed where there is a real risk that (s)he will not act fairly and conscientiously in that office or if (s)he cannot be expected to continue to carry out the administration of the estate in an effective and proper manner.

It had previously been thought that the s 116 jurisdiction was to be used in those cases where a grant of representation had not yet been taken out, and that the s 50 jurisdiction was only to be used where problems arose post-grant. However, in In re Goodman, decd [2014] Ch 186, Newey J held that the s 50 jurisdiction could in fact be used to remove an executor who had not yet taken a grant of probate.

The decision in Goodman, which seemed to run against earlier Court of Appeal dicta, is plainly an important one, and the Judge accepted that there will now be a considerable overlap between the s 116 and the s 50 jurisdictions. However, it certainly does not mean that s 116 is likely to become redundant. In the first place, it will continue to be the only means of passing over a potential administrator prior to the grant in the case of an intestacy. It was confirmed in Goodman that s 50 could apply to executors, but not to prospective administrators, in cases where no grant of representation had yet been made. The reason for the difference in treatment lies in the fact that an executor derives title from the Will, whereas an administrator can only derive title from their appointment as such by the Court.

In addition, s 116 will remain of particular relevance in certain cases where s 50 is unlikely to be appropriate/available, such as those difficult cases where a grant (often limited) is sought at an early stage for the purpose of enabling one particular party to decide upon the appropriate disposal of the deceased’s remains: see, for example, Ibuna v Arroyo [2012] WTLR 827.


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