Goodman v Goodman

Section 50 of the Administration of Justice Act 1985 applies to an executor named in a will even where probate has not been granted. An executor derives title from the will and is therefore a personal representative capable of being replaced or removed. The existence of overlapping powers under section 116 of the Senior Courts Act 1981 and the Judicial Trustees Act 1896 does not imply that section 50 is inapplicable. A contrary observation in an earlier Court of Appeal judgment was obiter where the decision had rested on the court’s approval of the first-instance exercise of discretion.

Everard Goodman’s will named his two sons and his widow as executors. Following serious disagreements concerning the estate, the widow applied under section 50 of the Administration of Justice Act 1985 for an independent professional to take over its administration.

A Master rejected the sons’ argument that section 50 could not apply because the named executors had not obtained probate, and that the application had to be made under section 116 of the Senior Courts Act 1981. The sons appealed. The central issue was whether section 50 extended to a named executor who had not proved the will.

1. Appeal dismissed. Section 50 of the Administration of Justice Act 1985 applies to an executor named in a will who has not obtained probate.
2. The expression personal representative naturally encompasses an executor and an administrator. An administrator derives title from the grant of letters of administration, whereas an executor derives title from the will and the deceased’s property vests in the executor on death. Probate establishes the executor’s title in court but does not create it.
3. Section 50 contains no express restriction limiting its application to executors who have obtained probate. The definition of will in section 56 is not confined to a will already admitted to probate. The overlap with section 116 of the Senior Courts Act 1981 is not a reason to restrict section 50; comparable overlap exists with the Judicial Trustees Act 1896.
4. The suggested interpretation would require special circumstances to replace an executor before probate but impose no equivalent requirement after probate. There was no evident reason why Parliament would have intended that result. Practice Direction 57 and probate commentary were consistent with applying section 50 to non-proving executors.
5. Perotti v Watson did not bind the court on this issue. The Court of Appeal’s statement that there was nothing from which to remove a non-proving executor was obiter. The true basis of that decision was that the first-instance exercise of discretion was unimpeachable.
6. The court was accordingly free to consider the scope of section 50 afresh and agreed with the Master’s conclusion.

1. High Court (Chancery Division): The appeal from the Master’s decision was dismissed. The Master had held on 9 January 2013 that section 50 of the Administration of Justice Act 1985 could be invoked without probate having been granted.