Dobson v Heyman

Removal of a personal representative under Administration of Justice Act 1985, section 50, is governed by the welfare of the beneficiaries and the proper execution of the estate administration. Misconduct or fault need not be proved. Where friction, lack of confidence or failure to provide information makes administration difficult, the court may adopt a pragmatic approach and appoint a substitute. On appeal, the exercise of the first-instance discretion should stand unless no material existed on which it could properly have been exercised.

The appeal concerned an order by a Deputy Master removing the appellant as executor of an estate and appointing a solicitor as an additional trustee of the principal estate asset. The appellant had administered some practical matters but had failed to provide the beneficiaries with information and had acted without professional advice. Allegations of misconduct had been made without giving him a proper opportunity to respond.

The appeal therefore raised whether the order under section 50 of the Administration of Justice Act 1985 could be sustained on the undisputed facts, notwithstanding the summary nature of the hearing and the untested allegations.

1. The appeal was dismissed. The order removing the appellant as executor was upheld.

2. Section 50 confers a discretion to substitute a personal representative. The governing consideration is the welfare of the beneficiaries and whether the estate is being properly administered. The principles stated in Letterstedt v Broers (1884) 9 AC 371 apply. Removal does not require proof of misconduct where the continuance of the personal representative would impede proper administration.

3. The court adopted the pragmatic approach described in Re Loftus [2005] 1 WLR 1890 and approved in Carvel v Carvel [2007] EWHC 1314 (Ch). Relevant circumstances included the beneficiaries’ interests, the condition of the administration, friction between the executor and beneficiaries, the beneficiaries’ lack of confidence in the executor’s account, and the need to avoid disproportionate costs.

4. The Deputy Master’s statement that nothing had been done was inaccurate, and his reasons were very brief. The allegations of misconduct were therefore disregarded. However, the unchallenged facts established prolonged failure to provide material information, friction between the sole executor and beneficiaries, and a conflict arising from the appellant’s own beneficial interest in the property.

5. This was an appeal against the exercise of a discretion. The order should not be set aside merely because the reasons were limited. The relevant question was whether there was sufficient material on which the Deputy Master could properly have reached his decision. There was such material, and the order was therefore allowed to stand.

• High Court (Chancery Division): The Deputy Master’s order of 8 August 2007 removed the appellant as executor under section 50 of the Administration of Justice Act 1985. The High Court dismissed the appeal and upheld that order.