This case involved an appeal against a decision to remove an executor under section 50 Administration of Justice Act The rationale for the appeal was that the incorrect procedure had been used by the claimants. As this was an application to remove an executor before the grant had been obtained, it was argued that the procedure under section Senior Courts Act should have been used. The court upheld the first instance decision and found that an application to remove an executor under section 50 Administration of Justice can be made before a grant has been obtained.
As those transactions properly required investigation, with such investigation needing to be undertaken by the executors, it was considered inappropriate for the present executors to remain in that role as that would amount to a conflict of interest.
They were therefore removed as executors and replaced by an independent solicitor. These cases provide some helpful guidance. However, each case is different and heavily dependent on its own facts. What is apparent is that there must be clear and compelling reasons that would adversely affect the administration of the estate and the welfare of the beneficiaries.
Bad relations alone will not usually be enough. Clear evidence of misconduct, particularly in relation to financial matters, will strongly influence the decision of the court. Personal representatives owe an overriding duty to the estate. Where dishonesty or lack of good faith can be shown, then the court is likely to make an order that the personal representative is removed. If you are considering making an application to remove an executor or personal representative or are facing such an application it is vital that you obtain expert legal advice as early as possible.
Roman is a partner and head of the contested wills, trusts and estates team. He advises across the whole spectrum of private client litigation, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance Provision for Family and Dependants Act ; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.
Leaving a gift in your will to Age UK is a special way to make sure older people have the support they need in the years to come. Learn how a gift in your will could be a lifeline for those who have nowhere else to turn. Find out more. Back to top. Postcode Please enter a valid postcode Submit. Power of attorney What happens if you don't have a power of attorney? Choosing an attorney What is an Executor?
What is an Executor? What is an executor? How do I choose executors for my will? How do I apply for probate? How do I value the estate? How do I pay Inheritance Tax? If, for any reason, the executor refuses to apply for a grant of probate , it is sensible to write a letter to the executor and warn them that an application to court will be made, potentially leading to appointing someone else to deal with the estate.
If the court orders it, a beneficiary or next of kin is entitled to apply for a grant of probate. Prior to making a formal court application, if the circumstances are right and if the executor has not intermeddled as outlined above , a formal notice in the form of a citation from the Probate Registry can be served to the named executor. The Non-Contentious Probate Rules govern the procedure for preparing and serving a valid citation.
It may also be necessary as part of this to make an application to subpoena the will if the executor is holding the original. If the response is not satisfactory, and you think that you have evidence of serious misbehaviour, you may make an application to the court to remove and substitute the executor.
Such an application is made under Civil Procedure Rules Unfortunately, being unfriendly towards beneficiaries is not enough, and a slow executor or an executor who will not send you certain documents excluding an inventory or account is not unsuitable for those reasons alone. For details of the order of priority and the requirements for clearing off, see Practice note, Personal representatives: who may apply for a grant where there is a will but no executor? This, however, would not result in a neutral person administering the estate.
Another option is to make an application to the court under section 50 of the Administration of Justice Act AJA Under section 50, the court has discretion to appoint one or more new personal representatives PRs in place of the existing executors or to terminate the appointment of one or more but not all of them unless appointing at least one substituted PR.
The application for removal is governed by Part 57 of the Civil Procedure Rules CPR and may be made by an executor or a beneficiary see, in particular, rule The application must be made to the Chancery Division of the High Court by way of a Part 8 claim form.
This delegation is authorised by section 25 of the Trustee Act , which applies to both trustees and PRs section 25 10 , TA For a precedent, see Standard documents:.
You may also find Ask, Where the sole executor of a will containing a will trust renounces their right to act as executor and trustee, who will assume the role of trustee?
0コメント