Long v Rodman & Ors

Under section 50 of the Administration of Justice Act 1985, removal of a personal representative is governed by the welfare of the beneficiaries as a whole. The court should act pragmatically and in stages. Wrongdoing is not essential. Beneficiary wishes are relevant but not determinative, and relationship breakdown alone is insufficient. A real potential conflict, non-trivial complaints warranting investigation, or claims against the incumbent may justify removal. Other persons being able to perform some administrative steps is not necessarily a complete answer. The court must separately assess the suitability of proposed replacements and may appoint an independent administrator.

Norman Rodman’s estate was administered by David Long following his appointment as administrator. Linda and Barbara Rodman applied under section 50 of the Administration of Justice Act 1985 to remove him and appoint Linda and Debra. The application was opposed because most administrative work was complete and the proposed appointees were said to be unsuitable. The court considered complaints concerning tax, administration, potential claims and conflicts of interest, together with the suitability of alternative administrators. The central issue was whether replacement was in the interests of the beneficiaries and, if so, who should be appointed.

Governing approach

1. An application under section 50 of the Administration of Justice Act 1985 should be addressed in stages: whether the discretion is engaged, whether an order should be made, and what order is appropriate. The jurisdiction is pragmatic. Its core guide is the welfare of the beneficiaries as a whole, as explained in Letterstedt v Broers (1884) 9 App Cas 371 and applied to section 50 applications in Thomas and Agnes Carvel Foundation v Carvel [2008] Ch 395.

2. Wrongdoing or fault need not be established. The wishes of the testator and beneficiaries, the practical difficulty of completing the administration, and the cost of replacement are relevant. Beneficiaries have no right to demand removal. Unanimous beneficiary wishes are important in an appropriate case, but the court rejected the broader approach in Khan v Crossland [2012] WTLR 841 that such wishes are invariably a very powerful factor. Relationship breakdown alone is insufficient, although hostility grounded in the administration must not be disregarded.

3. Where claims against an incumbent administrator require investigation, an established conflict is unnecessary. An outward appearance of, or potential for, conflict may justify removal. Allegations should be assessed by asking whether there is a non-speculative evidential basis for claims with reasonable prospects, likely to enhance the estate relative to their cost, bearing in mind that several borderline claims may cumulatively warrant investigation. The approach in In re Folkes [2017] EWHC 2559 (Ch) was applied.

4. A derivative action requires special circumstances, unified by the need to avoid injustice: Roberts v Gill [2010] UKSC 22. Where potential claims are against the incumbent, it is preferable for them to be pursued directly by the administrator. The fact that other persons could perform some administrative steps therefore did not answer the application.

5. The complaints concerning tax returns, payment of tax, compliance with an earlier order, costs and potential professional negligence claims were not trivial. They warranted investigation and created conflicts making Mr Long’s continued tenure inappropriate. The court therefore ordered his replacement.

6. The questions whether to remove an administrator and whom to appoint are separate. Linda and Debra were unsuitable because of concerns about their previous dealings with the estate, lack of candour, unexplained tax and estate figures, and inability to demonstrate that the correct tax would be paid. Mr Pintus was suitable, but a joint appointment would not provide an acceptable solution. He was appointed alone. Mr Long’s directions application consequently fell away. The hearing remained private under CPR 39.2(3), but the judgment was handed down unrestricted.