Personal representatives fall into two categories: executors, who are named in the will; and administrators, who are not named in the will and so take their authority from the grant of representation.
The courts are generally slow to remove executors given their reluctance to interfere with a testator’s wishes (generally speaking, they are more ready to remove administrators). Accordingly, applications to remove executors will usually fail unless the applicant can demonstrate that either the executor has been at fault, or there is otherwise a good reason to make the application.
The case of Heath v Heath, which was decided on 17 January 2018, is an example of the latter.
The case
The deceased had three sons who were the three named executors under her will. The claim was brought by two of the executors to remove the third. The three were also the only beneficiaries, each receiving an equal share.
The defendant executor had lived with and provided care for the deceased for many years, along with two full-time carers. He claimed he should receive a greater share of the estate for the work that he had done for her which had resulted in restricting his earning capacity during that time. He also believed that the deceased had in fact made a later will which left the entire estate to him (although this could not be located).
The claimants sought the defendant’s removal as executor on the basis that he had frustrated the administration of the estate by not signing the required paperwork and had not generally cooperated with the estate administration process.
The decision
The Judge in fact held that defendant had not acted inappropriately while the deceased was alive, nor had he subsequently sought to frustrate the administration of the estate. To put it another way, the defendant was not at fault.
Nonetheless, the Judge ordered that the defendant should be removed as an executor. This was because of the conflict of interest arising from his potential claim, and further, given his belief that there was a later will he would be unable to properly carry-out the estate administration on the basis of an equal thirds split between the three beneficiaries.
To ensure that the defendant’s interests would not be adversely affected, the claimants were ordered to provide an undertaking that an independent solicitor replaces the defendant.
Conclusion
The case is an interesting example of an executor being removed despite not being at fault in the estate administration. While such orders are rare, they are appropriate in certain circumstances. s.50 Administration of Justice 1985 provides the judge with a wide discretion, and they can therefore make their decision on the basis of whatever order would be in the best interests of the estate as a whole.