Otubu & Ors v Otubu (Re Estate of Godfrey Itse Mene Otubu)

A personal representative may be substituted where the court considers that the estate should be administered by another person. Misconduct need not be established, although friction or hostility is relevant where it obstructs, or may obstruct, administration. A procedural failure does not invalidate proceedings where the court can remedy it under CPR 3.10. Where the statutory conditions for alteration of a registered title are satisfied, the court must order alteration unless exceptional circumstances justify withholding relief. An alteration may bring the register up to date as to the proper proprietors and need not be characterised as rectification.

The claim concerned the English estate of a deceased domiciled in Nigeria. The claimants, who included executors named in the deceased’s will and beneficiaries of his estate, challenged the defendant’s English grant of administration and her registration as proprietor of two residential properties.

The defendant had signed transfers purporting to transfer the properties to a trust, but the transfers were ineffective because they were not made to the proper trustees. She then ceased to participate in the proceedings and did not attend the trial. The issues were whether she should be replaced as personal representative and whether the property registers should be altered in favour of the appropriate claimants.

1. Substitution of personal representative. The court granted permission to pursue relief under section 50 of the Administration of Justice Act 1985. The defendant had accepted that the properties should be transferred, failed to effect the transfers properly, and withdrawn from the process. She should therefore be substituted.
2. Applying Kershaw v Micklethwaite [2010] EWHC 506 (Ch), as informed by Thomas & Agnes Carvel Foundation v Carvel [2008] Ch 395, the overriding consideration is the proper execution of the trusts and the welfare of beneficiaries. Friction or hostility alone is insufficient, but a breakdown in relations may justify removal where it obstructs, or may obstruct, administration. Misconduct need not be proved.
3. The claim had not been accompanied by evidence of the proposed individual’s fitness as required by CPR 57PD 13.2(2). The court remedied that procedural error under CPR 3.10. The status of the third and fourth claimants as executors named in the Nigerian grant was sufficient. The sixth claimant was not added because her evidence did not address fitness.
4. Alteration of the register. Under paragraphs 2 and 3 of Schedule 4 to the Land Registration Act 2002 and rule 126 of the Land Registration Rules 2003, the registers were to be altered. Following NRAM Ltd v Evans [2017] EWCA Civ 1013, the order was to bring the registers up to date as to the persons who should be registered proprietors, rather than to correct a mistake. The defendant’s lack of proper care had caused or substantially contributed to the registrations requiring alteration, and there were no exceptional circumstances justifying refusal.
5. Orders were made substituting the third and fourth claimants as personal representatives and altering the registers accordingly. There was no order as to costs. The claimants were directed to serve a draft order on the defendant.

not stated in the judgment.