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Removing Personal Representatives - a Reminder of the Factors to Consider

on Friday, 20 May 2016.

The recent case of Harris v Earwicker [2015] EWHC 1915 (CH) sets out a useful summary of the principles underlying applications to remove personal representatives ('PRs') under section 50 of the Administration of Justice Act 1985.

Harris v Earwicker concerned a residuary beneficiary (the 'beneficiary') who applied for the removal of all three of the executors of her late father's (the 'deceased's') estate, or in the alternative, the removal of one executor, Mr Harris.  The beneficiary claimed that Mr Harris had mishandled the estate in a number of ways, which included  selling the deceased's property at an undervalue.  It was also submitted that the executors had failed to immediately notify the beneficiaries of the deceased's Will and that they had failed to pay the beneficiary's pecuniary legacy.

Mr Harris was removed as PR and the remaining two executors continued to act. In considering the application, the Chief Master had regard to the following factors:

  • The stages completed in the administration - The estate was largely wound up and the remaining work to be completed related to the Will trust.
  • The proper administration of the estate - There was no finding of deliberate wrongdoing or fault on the part of Mr Harris or the other executors and the Court found that the sale of the property had been dealt with appropriately.  Despite this, the Court gave great consideration to the difficulties of Mr Harris continuing to remain as executor in light of the allegations against him in particular and this was held as a major factor in his removal.
  • Conflict between Mr Harris and the beneficiaries - The Court heard that there had been a complete breakdown in the relationship between the beneficiaries and Mr Harris. Indeed, Mr Harris himself recognised that it might not be helpful for him to continue given the criticism he faced.  The Court therefore held that in the interests of the beneficiaries and in finalising the administration, Mr Harris should be removed.  However, the other PRs should continue to act to provide continuity of decision-making in respect of the Will trust.
  • The wishes of the testator - The Court put importance on the fact that the deceased had carefully chosen his PRs, which was a persuasive reason for the Court to permit the other two PRs to remain in post.

Harris v Earwicker provides valuable and updated guidance on what the Court will consider to be serious enough to warrant the removal of a PR. A potential applicant under section 50 of the Administration of Justice Act 1985 will need to present convincing reasons to bring a successful application, which will include consideration of the guiding principles highlighted in this case and summarised below:-.

  • Where there is serious wrongdoing or fault which could jeopardise the administration of the estate, or cause loss to it, the Court is likely to allow a removal application to succeed.  However, cases of minor and undeliberate wrongdoing will not automatically succeed.
  • The Court will, wherever possible, uphold the testator's choice of PR. However while this factor will carry significant weight, it will be balanced against the other considerations.
  • The beneficiaries' preferences will also often be relevant.  However the Court will consider the best interests of the beneficiaries as a whole rather than based upon one individual's stance.
  • The costs of replacing the PR will also be a consideration and the Court will look at the size of the estate and the scope of the remaining work in relation to this.

Please contact Michelle Rose on 0117 314 5246 if you would like details of the work we regularly undertake as court appointed independent administrators in deadlocked or disputed estates.