How to remove an Executor or an Administrator
An application to remove an executor or administrator can be made to the High Court under section 50 of the Administration of Justice Act 1985. Alternatively, the Court may be asked to pass over an executor before a grant of probate is issued, pursuant to section 116 of the Senior Courts Act 1981.
When Can an Executor Be Removed?
The Court has discretion to remove or substitute an executor or administrator in circumstances where it is satisfied that removal is in the best interests of the proper administration of the estate. Common grounds for removal include:
Disqualification: The executor has become legally disqualified (e.g., conviction and imprisonment).
Incapacity: The executor is incapable of performing their duties due to mental or physical incapacity.
Unsuitability or Misconduct: The executor is unsuitable, for example, due to serious misconduct, conflict of interest, or failure to comply with Court orders.
It is not necessary for the Court to find wrongdoing; the guiding principle is whether the estate is being administered properly.
Steps to Take Before Court Proceedings
Court proceedings should be a last resort. If there are concerns about an executor’s conduct, the following steps are recommended:
- Raise Concerns in Writing: Instruct a solicitor to write to the executor, setting out concerns and requesting an explanation.
- Invite Voluntary Resignation: If the response is unsatisfactory, the executor should be invited to stand down voluntarily.
- Consider Mediation: Where appropriate, alternative dispute resolution should be considered before issuing proceedings.
If these steps do not resolve the issue, an application to the Court may be necessary.
If You Are an Executor Facing a Challenge
Executors who receive correspondence from beneficiaries or others challenging their conduct should seek legal advice before responding. Executors are generally entitled to have the costs of initial legal advice met by the estate. However, if an executor defends a removal application unsuccessfully, they may be personally liable for costs, particularly if the defence is not in the interests of the estate or is conducted unreasonably.
What the Court Considers
The legal principles governing removal were summarised in Harris v Earwicker [2015] EWHC 1915 (Ch):
- The Court need not find fault; the key question is whether the estate is being properly administered.
- Proven wrongdoing or conduct endangering the estate will likely result in removal.
- The wishes of the testator and, to a lesser extent, the beneficiaries may be relevant.
- A breakdown in the relationship between executor and beneficiaries may justify removal if it impedes administration.
- The Court will consider the proportionality of removal, including the costs relative to the size of the estate.
Costs of a Removal Application
Costs are at the Court’s discretion. The general rule is that the unsuccessful party pays the successful party’s costs. Executors should not assume automatic indemnity from the estate for their legal costs, especially if their conduct is found not to be in the estate’s best interests. See Lea Lilly Perry and Tamar Pery v Dieter Walter Neupert and others [2019] EWHC 2275 (Ch).