Haynes v Andre & Anor

On an application under section 50 of the Administration of Justice Act 1985, the overriding consideration is whether the estate is being properly administered. If it is not, the court must decide whom to appoint as substituted personal representative. An independent professional may be appropriate where that is necessary to prevent delay or obstruction, but the additional cost of such an appointment is a relevant consideration. The deceased’s expressed choice of a substitute executor is also relevant. Friction between an executor and beneficiary is not, by itself, sufficient. It matters only where the relationship has the potential to obstruct administration. A beneficiary with a direct interest in prompt completion may be appointed, subject to appropriate safeguards.

The claimant sought the removal of the first defendant as executor of his late mother’s estate under section 50 of the Administration of Justice Act 1985. The first defendant had largely ceased administering the estate, whose principal asset was a valuable flat requiring sale. The claimant initially sought his own appointment, but ultimately preferred an independent professional. The second defendant, the deceased’s daughter and an equal residuary beneficiary, opposed the claimant’s appointment and sought appointment herself. The central issue was whether the second defendant or an independent professional would best secure the proper and prompt administration of the estate.

1. The court exercised its discretion under section 50 of the Administration of Justice Act 1985 to remove the first defendant and appoint the second defendant as substituted personal representative.
2. The estate was not being properly administered. The first defendant had effectively relinquished his role for several months and had taken no apparent steps to market the principal property. That was sufficient, particularly as more than a year had passed since probate.
3. An independent professional may be appointed where that is the safest and most appropriate way to secure proper administration, especially where administration would otherwise remain delayed or obstructed. The court must, however, take account of the significant additional cost of introducing a professional with no prior knowledge of the estate.
4. The deceased’s will contemplated the second defendant acting if the first defendant died, refused or became unable to act. That was relevant, although it was not the deceased’s first choice and the will contained no professional charging clause. The second defendant was also an equal residuary beneficiary, had been involved in the estate, and was receiving advice from experienced solicitors.
5. The strained relationship between the claimant and the second defendant did not justify refusing her appointment. Friction or hostility between an executor and beneficiary is not, without more, a reason for removal or non-appointment. It is relevant only if it has the potential to obstruct administration. The evidence did not establish that risk here.
6. The claimant’s concerns could be addressed by directing that the sale of the property take place under the court’s direction. The second defendant was therefore appointed in place of the first defendant, with consequential matters adjourned for later determination.