Miles Sealy Connell & Anor v Timothy James Boyton Connell

Under section 50 of the Administration of Justice Act 1985, the overriding question is whether the estate can be administered properly and in the best interests of the beneficiaries as a whole. Removal does not require established wrongdoing or fault. Persistent hostility, unjustified demands, conflicts of interest, and conduct which prevents administration may make an executor unsuitable. A breakdown in relations supports removal where it makes administration difficult or impossible. A testator’s choice of executor remains relevant, as do cost and the interests of all beneficiaries. A hotchpot direction may bind a legatee according to its terms, even where the alleged advance was not in fact made. Ordinary mistakes or disputed account entries do not, without more, justify removing otherwise suitable executors.

The claimants, the deceased’s husband and elder son, applied under section 50 of the Administration of Justice Act 1985 to remove the defendant, the deceased’s younger son, as executor and trustee of her estate. The defendant sought the claimants’ removal as well and raised objections concerning the will, a hotchpot clause, estate accounts, financial transactions and an alleged claim against his former wife.

The estate had remained unadministered for over two years. The court had to determine whether the defendant should be removed, whether the claimants should remain in office, and whether an independent professional executor should be appointed.

1. Removal of Timothy. The court removed Timothy as executor under section 50 of the Administration of Justice Act 1985 and as trustee of trusts arising under the will. Applying Harris v Earwicker [2015] EWHC 1915 (Ch), the controlling consideration was whether the estate could be administered properly and in the beneficiaries’ interests as a whole. Removal did not depend on proof of wrongdoing or fault.
2. Timothy’s hostility towards Miles and Rupert, persistent pursuit of his own agenda, unjustified demands, improper allegations, lack of impartiality and insistence on remaining in office had caused the administration to reach a standstill. His conduct showed that he lacked the temperament, character, personal qualities and independence required of an executor. The principles in Re McDonald, deceased (Pegler v McDonald) [2022] EWHC 2405 (Ch) were applied.
3. Although an executor who questions the validity of a will may be removed, that ground was not made out because Timothy ultimately stated that he would not challenge the will and allowed his caveat to lapse. His continuing challenge to the hotchpot clause was legally unjustified. A testamentary recital and direction to bring an advance into account could bind the legatee even if the advance had not in fact been made, as illustrated by Re Wood (1886) 32 ChD 517.
4. Retention of Miles and Rupert. The allegations against the claimants did not justify their removal. Errors in draft accounts, disputed valuations and the decision not to sue Bethan were insufficient. Not every mistake warrants removal. However, accounts concerning dealings with the deceased’s assets under the power of attorney had to be prepared, and revised estate accounts had to be filed and verified.
5. Applying the approach in Schumacher v Clarke [2019] EWHC 1031 (Ch), the application was not an opportunity to litigate irrelevant grievances. An independent professional executor was nevertheless to be appointed alongside Miles and Rupert to review the accounts, consider further administration and protect Timothy’s interests as beneficiary. Evidence required by Practice Direction 57, para. 13.2, including consent to act and fitness and charging evidence, was directed.

First-instance decision. No appellate history is stated in the judgment.