Hudman v Morris

The court may remove an executor where the proper and effective administration of an estate is threatened, even without proof of wrongdoing. The central question is the welfare of the beneficiaries considered as a whole. Relevant factors include material misconduct, hostility affecting impartial administration, inability to act objectively, the testator’s wishes, the beneficiaries’ wishes, the remaining work, and the cost of replacement. A breakdown in relations alone is insufficient, but it may justify replacement where it makes administration difficult or impossible. The court must exercise its discretion pragmatically and may appoint an independent administrator where continuing joint administration has reached deadlock.

The claimant and defendant were co-executors of their father’s will and beneficiaries of his estate. The claimant sought the defendant’s removal under section 50 of the Administration of Justice Act 1985, alternatively that he be passed over under section 116 of the Senior Courts Act 1981. The dispute concerned the defendant’s conduct regarding a disputed expenses claim, his hostility towards the other beneficiaries, his conduct while acting under a lasting power of attorney, and the practical deadlock in administering the estate.

The court had to decide whether the defendant’s continued involvement threatened proper administration and whether an independent personal representative should be appointed.

1. Removal of executor. The court’s guiding consideration under section 50 was the welfare of the beneficiaries as a whole. Proof of wrongdoing was unnecessary. The question was whether there was a real risk that the executor would not act fairly and conscientiously or administer the estate effectively and properly.
2. The defendant’s refusal to contemplate inclusion of the expenses claim, and his refusal to accept solicitors’ advice that it should be treated as a notified claim, were wrong and unreasonable. They caused the administrative deadlock and showed that he placed his own views and interests above those of the estate.
3. Although poor relations alone do not justify removal, the defendant’s sustained and substantial hostility meant that he could not be trusted to administer the estate impartially. His conduct towards Aaron was an additional, though insufficient by itself, indication of unfitness.
4. The defendant’s conduct under and in relation to the lasting power of attorney was also material. His repeated attempts to reopen decisions made by the independent deputy, together with his argumentative and subjective approach, showed that he could not be expected to adopt the reasonable, structured and objective approach required for administration.
5. The deceased’s wishes were relevant but not decisive. The wishes of beneficiaries were also relevant, and the wishes of beneficiaries representing 80% of the residuary estate were a weighty factor. The additional cost of an independent administrator did not outweigh the need for competent administration.
6. The defendant was removed. The claimant was also removed, and Ms Wharry was appointed as substitute personal representative. Alternatively, the wholesale breakdown in relations made administration by the existing executors impossible and independently justified appointment of an independent administrator.