“Administration is eternal, forever and ever, Amen” - Removing an Executor

Whilst Sir Humphrey Appleby is, no doubt, right about the business of government being an eternal process (something we have perhaps all been reminded of in the build-up to, delivery and aftermath of the Budget), the process of administering an estate certainly should not be. Indeed, the purpose of a testamentary bequest (and the Intestacy Rules where they apply) is to ensure that those who remain receive the Deceased’s property; and executors are bound by law to administer and to distribute the estate in accordance with the Will (or the Intestacy Rules on an intestacy) (s.25(a) Administration of Estates Act 1925) and to do so promptly – the duty to act expeditiously arises from the executor’s position as a fiduciary, obliging them to act in the best interests of the beneficiaries of the estate, and from s.44 Administration of Estates Act 1925, which provides that an executor becomes liable to distribute the estate after the expiration of one year from the death.

However, sometimes the administration of an estate is not conducted properly. Sometimes that is the result of unfortunate circumstances, sometimes it is by mistake and sometimes by design – executors sometimes wrongly try to leverage their position for personal advantage, causing the administration to be spun out without end (the recent case of Connell v Connell [2024] EWHC 2646 (Ch) is a case in point).

If the executor and the administration cannot be set on track to a final distribution in accordance with the law, the beneficiaries may have to resort to seeking the removal or replacement of the defaulting executor by the Court.

Claims for Removal or Replacement

Under s.50 Administration of Justice Act 1985, a claim can be made by or on behalf of a personal representative (an executor) or a beneficiary of the estate for the removal or replacement of an executor, and the Court may in its discretion

• appoint a person…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 

• 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.

Criteria for Removal or Replacement

In deciding whether to exercise its discretion as to whether the executor in question should be removed or replaced, the Court has to have regard to the law on the circumstances in which removal or replacement is appropriate. The law was summarised in Harris v Earwicker [2015] EWHC 1915 (Ch):

1. The overriding consideration is whether the administration of the estate is being, or can be, carried out properly. The core concern of the Court is what is in the best interests of the beneficiaries looking at their interests as a whole [and as part of considering the issue the Court will have regard to whether the executor in question or any proposed replacement is unfit to continue as or to be an executor (see Re McDonald, deceased (Pegler v McDonald) [2022] EWHC 2405 (Ch)- where the executor questions the validity of the Will or reserves the right to challenge it and/or where the executor fails to recognise and to manage appropriately any conflict between his/her own interests and those of the beneficiaries, he/she will be unfit to continue (Pegler)].

2. The power of the Court to remove/replace an executor is not dependent on a finding of wrongdoing or fault. In this regard, exercise by the Court of its power of removal is not dependent on the making of adverse findings of fact – it will often suffice for the Court to conclude that a party has made out a good arguable case about the issues that are raised.

3. The wishes of the testatrix, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account.

4. The wishes of the beneficiaries may also be relevant, but they have no right to demand replacement – the Court has to make a balanced judgment taking a broad view about what is in the interests of the beneficiaries as a whole.

5. The Court needs to consider whether, in the absence of significant wrongdoing or fault, it has become impossible or more difficult for the personal representatives to carry out/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.

6. 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.

Consequently, as can be seen from the above, the Court has to consider whether the executor’s conduct has been (or even merely appears perhaps to have been) sufficiently poor to justify his/her removal, whether the administration can be concluded and weigh up the pros and cons of removing him/her, including the additional delay and costs to the estate that may result from that.

How can we help?

If you would like to speak to one of the Contentious Trusts & Probate Team about your case, please contact us on 01823 625824, and one of the Team will be happy to help.

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