Kershaw v Micklethwaite & Ors

The statutory discretion to remove an executor is governed by principles analogous to those applying to trustees. The central question is whether continued appointment is likely to prevent proper administration of the estate or prejudice the beneficiaries’ welfare. Ordinary mistakes, delays, professional valuations or incomplete investigations do not suffice without a real risk to administration. Friction or hostility with a beneficiary is not enough by itself; it matters where it obstructs, or has a realistic potential to obstruct, administration. A testator’s deliberate choice of executors is relevant, as are the likely costs of replacement and the manageability of conflicts of interest. Removal is inappropriate where the estate can still be administered satisfactorily.

The claimant, a beneficiary under his late mother’s Will, applied under section 50 of the Administration of Justice Act 1985 to remove his two sisters and a professional accountant as executors. Probate had been granted to the defendants. The claimant relied on alleged undervaluation of assets, failures to provide information, difficulties identifying the estate, conflicts of interest, hostility and alleged incompetence. The central issue was whether the defendants’ continued appointment threatened satisfactory administration of the estate or made removal necessary for the beneficiaries’ welfare.

The claim was dismissed. Newey J declined to exercise the discretion under section 50 of the Administration of Justice Act 1985 to remove any defendant as executor.

1. Governing principles. The principles applicable to removal of trustees also apply to personal representatives. The overriding considerations are proper administration and the welfare of the beneficiaries. The approach stated in Thomas & Agnes Carvel Foundation v Carvel [2008] Ch 395 was consistent with Letterstedt v Broers (1884) 9 App Cas 371. No stricter test applies to executors. If anything, the simpler and more transient nature of an executor’s role may weigh against removal. Heyman v Dobson [2007] EWHC 3503 (Ch) also illustrated the application of the Letterstedt principles to an executor.
2. Hostility and conduct. Friction or hostility between an executor and beneficiary is not, by itself, sufficient. It is relevant where it obstructs, or has the potential to obstruct, administration. Nor does every mistake, neglect or inaccuracy justify removal. The court must be satisfied that continued appointment will prevent satisfactory administration or that beneficiary welfare calls for a change.
3. Other discretionary factors. A testator’s choice of executors is relevant because the testator may have known the characters, attitudes and relationships involved. The principle recognised in Dunne v Heffernan [1997] 3 IR 431 was applied. Potential conflicts arising from family members acting as executors do not necessarily require removal where they can be managed under the Will’s fiduciary provisions or by an application to the court. The substantial additional costs of replacing experienced representatives also weigh against removal.
4. Application. Professional valuations, delays in communication, difficulties identifying assets, criticisms of company management and hostility did not provide a real basis for supposing that the estate would be administered unsatisfactorily. The criticisms did not establish unfitness or bad faith, and the other executors were experienced and qualified. The poor relations between the parties need not substantially impede administration. The matters relied on, individually or together, therefore did not justify removal.

not stated in the judgment.