What happens if you want to remove or substitute executors or administrators?

As you might well expect, the principles regarding the removal or substitution of executors or administrators of estates are contained within a thick and dusty legal document - in this case in Section 50 of the Administration of Justice Act 1985 ("the Act"). Whilst, over the past 26 years, we've had relatively little guidance as to how a court might apply this, three cases in the past year have helped to clarify things.

The background

As things currently stand, if you apply to have an executor or administrator removed or substituted, in relation to the estate of a deceased person (as long as you are a personal representative of the deceased or a beneficiary of the estate), the court may either:

1. appoint a person as a 'substituted executor/administrator' of the deceased, in place of any previously listed; or
2. terminate the appointment of one or more (but not all) of the previously listed executors/administrators.

In short, whatever action they take, the Act suggests that there will always be at least one remaining executor/administrator, as per the original Will.

So, what have we learned?

Three cases decided in 2010 have provided some useful guidance as to how the Court will exercise its discretion. In the first of these, Angus v Emmott, the court considered an application to remove executors on the basis of long standing friction between the Emmotts and Mrs Angus, all of whom had been appointed as executors of a particular Will.

The Judge in this case made clear that whilst friction or hostility between the executors and the beneficiaries of an estate are not in themselves grounds for removing trustees, this does become a relevant consideration where relations between the parties have broken down to such an extent that it adversely affects the proper administration of the estate. The overriding consideration is whether the trusts were being properly executed.

The Judge held that there had been no misconduct on the part of the Emmotts but nevertheless held that the most appropriate course of action, in order to ensure the administration of the estate was carried out in the interests of all beneficiaries, would be to remove all the current executors and replace them with a professional executor who would be able to take an independent role in dealing with the administration of the estate.

The case of Kershaw v Micklethwaite concerned a claim by the son of the deceased that some or all of the three executors under her Will should be removed.

The claimant made a number of allegations with regard to the executors' administration of the estate, all of which the Judge held had no real foundation or were not sufficient to justify the removal of the executors.

In this case, the Judge also made the point that consideration should be given to the fact that the executors under a Will have been appointed by the Testator (the deceased person) and therefore this is a factor to be taken into account. The Judge felt that the Testator should be expected to have been aware of the characters and relationships involved when making the decision to appoint the executors.

A further factor that the Judge in this case referred to was the costs that would be involved in removing executors and appointing a replacement, which would inevitably lead to increased costs in the administration of the estate.

The final case was that of Alkin v Raymond and Wheeler which concerned an application to remove the two executors of the Will of Harry Alkin, who died in October 2008.

Again, the claimant raised a number of objections to the executors' administration of the estate, including one relating to an invoice submitted to the estate which it was claimed did not bear scrutiny (i.e. wasn't all it seemed at first glance).

Again, most of the allegations were rejected by the court, except for that relating to the invoice. In this instance, the Judge held that it was not properly calculated for money due from the estate.

On this basis the Judge held that the executor who has submitted the invoice should be removed as an executor, on the basis that he could not be relied upon to administer the estate in the interests of the beneficiaries rather than his own. The Co-Executor was also removed on the basis that he had supported the invoice put forward by his Co-Executor.

So, how is this relevant?

It is clear from these three cases that the guiding principle to be considered in determining whether or not the executors should be removed is whether the estate can be properly administered. It is necessary to provide clear and compelling reasons to justify the removal of a personal representative. Whilst misconduct can be a ground for removal, not necessarily every mistake will provide good reason for removing an executor. The guiding principle will be whether the mistake complained of is sufficient to prevent the proper administration of the estate. In the same way, a breakdown in the relationship between personal representatives, either between themselves or between the personal representatives and the beneficiaries can be a reason to remove them, provided it can be shown that the breakdown in relationships is affecting the proper administration of the estate.

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