Riley v Seed & Anor

The court may remove personal representatives where a breakdown in relations has directly impeded, or is likely to impede, the administration of an estate. Friction or hostility alone is insufficient. The court must weigh the testator’s choice, the nature of the representatives’ duties, and the welfare and proper administration of the estate. Where co-executors cannot work together and retaining one group would unfairly exclude another, the appropriate order may be to remove all of them and appoint an independent substitute. In such a case, the substitute’s future costs ordinarily fall on the estate.

The deceased appointed her three daughters as executors and trustees, with the residue of her estate divided equally between them. Following her death, relations deteriorated. The claimants sought orders under the Administration of Justice Act 1985, the Trustee Act 1925 and the court’s inherent jurisdiction.

The dispute concerned whether one or more daughters should be removed, whether an independent personal representative should be appointed, and how the litigation and administration costs should be allocated.

1. The claim succeeded to the extent that all three appointed executors were removed. The appointment of a substitute personal representative was referred to a Chancery district judge, unless the parties agreed an appointment capable of being dealt with on paper.
2. The relevant jurisdiction arose under section 50(1)(a) of the Administration of Justice Act 1985. Section 41 of the Trustee Act 1925 supplied a related jurisdiction concerning trustees, but section 41(4) did not itself confer power to appoint an executor or administrator.
3. The governing approach was fact-sensitive. The court had to consider the simplicity of the executors’ duties, the deceased’s choice of executors, and whether friction or hostility had directly impeded, or might impede, administration. Hostility alone was insufficient.
4. Here, the relationship between all three executors had broken down. The estate had remained without a grant of probate for about nine months, and the court could see no satisfactory prospect of joint administration. Removing only the defendant, or only the claimants, would have been unjust and inequitable. The only safe course was therefore to remove all three and appoint an independent solicitor.
5. The claimants’ instruction of solicitors did not amount to an abdication of their personal responsibility as executors and did not invalidate their retainer. The solicitors acted for the claimants, not for the estate or all three executors.
6. The claimants were successful. They bore their own costs, including the solicitors’ charges, up to 20 November 2012. Costs of the litigation after that date were to be borne from the defendant’s share of the estate. The substitute personal representative’s future costs were to be borne by the estate as a whole.

This was a first-instance decision. The court explained that an appeal lay to the Court of Appeal with permission, within 21 days, but no appeal was determined in the judgment.