Angus v Emmott & Anor

Where executors are deadlocked, the court should not assume their discretionary function unless it has all material necessary to make an informed decision. It should decline to direct the use of disputed evidence where the factual investigation and forensic assessment properly belong to the executors and their advisers.

Under section 50 of the Administration of Justice Act 1985, removal of a personal representative is not limited to misconduct. The central consideration is the proper administration of the estate and the welfare of its beneficiaries. Serious breakdown of trust and cooperation, making administration impracticable or unduly delayed, may justify removal. A suitably independent professional may be appointed in place of all existing representatives.

Anthony Steel’s estate included a substantial compensation claim following the quashing of his murder conviction. The executors disagreed about whether a lengthy statement signed by Mr Steel should be included in the proposed submission to the Home Secretary. The claimant sought directions requiring submission in its existing form and sought removal of the defendant executors under section 50 of the Administration of Justice Act 1985.

The defendants challenged the statement’s accuracy, authorship and completeness. The court also considered whether it should exercise the executors’ discretion itself and whether the breakdown in relations justified replacing the existing executors.

1. Existing draft submission. The direction requiring immediate submission in its current form was refused. The draft contained material inaccuracies concerning home visits, employment prospects and the authorship and evidential significance of Mr Steel’s statement. It required reconsideration by the solicitors and counsel.
2. Surrender of discretion. The application fell within the category where trustees or executors seek to surrender their discretion to the court. Following The Public Trustee v Cooper [2001] WTLR 901 and Marley v Mutual Security Merchant Bank and Trust Co. [1991] 3 All ER 198, the court required all material necessary for an informed decision. It lacked the underlying solicitor’s file, could not investigate disputed facts through witnesses, and could not properly undertake the forensic task of selecting and presenting evidence. It therefore declined to decide whether or how the statement should be used.
3. Observations on the statement. Assistance in preparing a witness statement, including assistance from persons with a financial interest, did not automatically exclude it. However, the circumstances made independent supervision desirable, particularly in light of Mr Steel’s suggestibility and the requirement in CPR 32PD 18.1 that a witness statement should, if practicable, be in the witness’s own words.
4. Removal of executors. Applying the principles discussed in The Thomas and Agnes Carvel Foundation v Carvel [2007] EWHC 1314 (Ch), including the principles in Letterstedt v Broers (1884) 9 App Cas 371, and the comparable approach in Re Consiglio Trusts (1973) 36 DLR (3d) 658, misconduct was not required. The decisive consideration was whether the estate could be properly administered in the beneficiaries’ interests. The hostility and distrust between the executors, together with prolonged delay, made continued administration by them unsafe and impracticable.
5. All existing executors were accordingly to be removed and replaced by a suitably qualified independent professional. A sole personal representative could be appointed under section 114(2) of the Supreme Court Act 1981, subject to confirmation of independence and willingness to act.

First-instance decision. The judgment records earlier proceedings concerning the deceased’s burial, but no appellate decision concerning the present applications.