Removal of Personal Representatives

Personal Representatives (also referred to as “executors” if there is a Will and “administrators” if there is no Will) are individuals either chosen by a testator to deal with and administer their Estate once they have gone or appointed in accordance with the Intestacy Rules, if no Will is in existence. Whilst many people consult with the individuals chosen as the Executors of their Will, some do not and finding out you are an Executor of a Will or an administrator can come as unwelcome news.

Being a personal representative comes with a number of duties and responsibilities that can be both time consuming and burdensome. Further, it is not uncommon that tensions may arise between the personal representatives and the beneficiaries, particularly if the beneficiaries do not consider that the Estate is being administered fast enough or properly.

These tensions can reach such a level that Court intervention is required. Section 50 of the Administration of Justice Act 1985 provides a mechanism whereby an application can be made by a personal representative or a beneficiary for the removal or substitution of another personal representative.

It should be noted that a Court will not simply order the removal of a personal representative just because the beneficiaries and personal representative do not get on or there has been some form of conflict. The key factors the Court will look to consider in any application for the removal of a personal representative were set out in the case of Harris v Earwicker [2015] EWHC 1915 (CH) and are:

1. The principal issue is whether the administration of the Estate is being carried out properly.
2. There is no need to find wrongdoing on behalf of the personal representative. However, if wrongdoing is established, the Court are more likely to exercise their power.
3. Whilst the wishes of the testator should be taken into account (when considering a Will appointing personal representatives) and the wishes of the beneficiaries, these will generally not be determinative.
4. There is no requirement for the beneficiaries and the personal representative to get on. A breakdown will be relevant but not determinative.
5. How far along the administration of the Estate is, what remains to be done and how complex the administration is or is likely to be will be relevant. The Court may decide that a removal is not required but instead directions will be given as to the administration of the Estate.
6. The value of the Estate is relevant if the suggestion has been that a professional personal representative should be appointed in substitution, the costs of which are likely to be substantial.

It should be noted that the removal of a personal representative will always be a last resort, the Court will only interfere with the appointed personal representatives if strictly necessary.

If you are a beneficiary of an Estate and have concerns regarding a personal representative or if you are a personal representative and you are having difficulties in relation to an Estate, please call our Dispute Resolution team on 0113 207 000 for advice or assistance.