In my latest article, I explore the circumstances in which executors can be removed from their position under section 50 of the Administration of Justice Act 1985.
The role of an executor is an important one because it is the executor who is responsible for administering the estate. Executors are expected to act responsibly and diligently throughout the administration process, and they risk being removed by court order if they fall below the expected standards.
Aside from acting with appropriate conduct, executors assume several duties to the estate and the beneficiaries, the extent to which is set out in section 25 of the Administration of Estates Act 1925, which states:
The personal representative of a deceased person shall be under a duty to—
- (a) collect and get in the real and personal estate of the deceased and administer it according to law;
- (b) when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court;
- (c) when required to do so by the High Court, deliver up the grant of probate or administration to that court.
In addition to the specific duties set out in section 25 of the Administration of Estates Act 1925, if executors are also appointed as trustees (which is often the case), they are also bound by the same statutory duty of care as trustees in accordance with section 35(1) of the Trustee Act 2000. Accordingly, executors must “exercise such care and skill as is reasonable in the circumstances, having regard in particular to any special knowledge or experience that he has or holds himself out as having, and if he acts as trustee in the course of a business or profession, to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession”.
What are the grounds for removing a problematic executor?
The court does not take the issue of removing executors lightly and, as a result, any application for removal should only be made if the executors are acting in serious breach of their duties and, even then, any application would need to be supported by sufficient evidence. The grounds upon which an application to remove an executor can be made broadly include:
- Acting in conflict with their own interests – if the executor’s own interests conflict with that of the estate, then it is likely that a conflict of interest would arise, rendering their continued appointment unsuitable.
- Applying the law improperly – the executor may have wrongly interpreted the legal framework in which they are acting, which may result in loss to the beneficiaries.
- Refusing to communicate with the beneficiaries of an estate – For the beneficiaries to properly understand the extent and progress of the estate administration, they will need to communicate with the executors. If the executors refuse to communicate with the beneficiaries, they will likely be in breach of their duties to the estate and vulnerable to removal.
- Abusing their position – executors may use their power as a bargaining tool to gain from an estate personally or perhaps to favour the interests of one beneficiary over the other.
- Acting contrary to the terms of the Will – the terms of the will act as instructions from the deceased as to how they want their estate to be distributed. If the executor doesn’t adhere to the terms of the will, then they would be breaching the very role they have been assigned to act upon.
- Excessive delay – whilst some estates will take longer than others to progress, there is an expectation that the executors will act promptly in administering the estate and, consequently, if the executors delay excessively, they risk being removed.
It is important to recognise that the court will not generally remove an executor simply because there is some friction or hostility between the executors and beneficiaries. In the recent case of Lane v Lane [2024] EWHC 275 (Ch), Jonathan Hilliard KC, sitting as Deputy Judge of the High Court, stated that “the touchstone under section 50 of the Administration of Justice Act is what is in the interests of the beneficiaries of the estate as a whole”. In that case, following multiple instances of poor conduct from the executor, the Judge concluded that the interests of the beneficiaries would be better served by the appointment of an independent professional administrator.
What is the process of removal?
The court has the power to appoint a person to act as personal representative in place of the existing personal representative under Section 50 of the Administration of Justice Act 1985. Before issuing proceedings, applicants are expected to provide a letter of claim placing the executor on notice of their intention to issue proceedings to allow them the opportunity to respond. If the applicant is unable to reach an agreement with the executors via correspondence, then they can issue an application at court.
Applications are made by filing a part 8 claim form at court with a supporting witness statement containing all the relevant factual and legal arguments to justify the order sought. The witness statement would be supported by any documentary evidence as appropriate. Once issued by the court, the applicant is required to serve the application upon the executors, at which point they can formally respond to the proceedings. If the parties cannot agree on a resolution of the claim, then the court will usually list a directions hearing to take place, the purpose of which would be for the parties to agree with the court on the steps required to take the matter through to a final hearing. Typical steps include the opportunity for further evidence to be filed by either party to support their respective positions. At the final hearing, the Judge will consider the evidence and arguments of either party and will conclude the application, including deciding who is liable for paying the legal costs involved in the proceedings.
Removal of trustees
It is often the case that testators will appoint individuals to act as both executors and trustees. If you seek the removal of an executor, who is also a trustee, it is important to remember to include that provision in any application made to the court. The leading case in removing trustees is the case of Letterstedt v Broers (1884) 9 App Cas 371r, which generally supports the removal of trustees if their continued involvement in the trust would be detrimental to the beneficiaries. The court has an inherent jurisdiction to remove and substitute trustees to protect the interests of the beneficiaries of a trust.
