Julian Lindsay Fernandez v Leessa Karen Fernandez & Anor

The removal of a personal representative under Administration of Justice Act 1985, section 50, does not require proved misconduct, breach of duty or endangerment of the estate. The governing question is whether replacement is in the best interests of the beneficiaries as a whole, assessed pragmatically. Potential conflicts, hostility that impedes administration, delay and the cost of replacement are relevant factors.

The same welfare-of-beneficiaries approach applies to removal of trustees under the inherent jurisdiction and section 41 of the Trustee Act 1925. A fiduciary must avoid both actual and potential conflicts of interest. An executor or trustee may lose the indemnity for litigation costs where those costs were not properly incurred. The appeal was dismissed.

The appellant appealed against District Judge Wales’s order of 3 December 2024. The order removed him as executor of his parents’ wills and as trustee of a 2008 discretionary trust, appointed an independent professional trustee, and made costs orders against him.

The proceedings began with the appellant’s claim for probate and revocation of letters of administration. The respondents counterclaimed for his removal and replacement. Although earlier directions contemplated a four-day trial of factual disputes, the respondents later obtained summary determination of the removal application. Permission to appeal was granted by Michael Green J on 3 March 2025.

The central issues were whether removal required findings of misconduct or breach of trust, whether the judge had adopted an impermissibly summary procedure, whether the findings of conflict and delay were open to him, and whether the costs and indemnity decisions were justified.

1. Appeal dismissed. The appellate court reviewed the decision below and found no error of law, serious procedural irregularity or plainly wrong exercise of discretion.
2. Under section 50 of the Administration of Justice Act 1985, the core question is whether the administration is being carried out properly and whether replacement is in the best interests of the beneficiaries as a whole. Misconduct, fault, breach of trust or endangerment of the estate are not prerequisites. A good arguable case may suffice to engage the jurisdiction, and applications will rarely require a full trial.
3. The judge was entitled to rely on the breakdown in relations, potential conflicts concerning trust appointments, property and disputed accounts, delay in administration, and the need for independent resolution of outstanding matters. The testator’s choice of executor and the increased cost of professional administration were relevant but not decisive. The decision to replace the appellant was within the generous ambit of reasonable judicial judgment.
4. The same broad approach applies to trustees under the inherent jurisdiction and section 41 of the Trustee Act 1925. There is no special requirement for specific findings of misconduct merely because the trust is discretionary. The relevant focus remains the welfare of the beneficiaries and whether replacement is expedient.
5. The fiduciary rules prohibit unauthorised profit and require avoidance of both actual and potential conflicts. A testator’s appointment of a beneficiary as executor may authorise some potential conflict, but it does not remove the continuing duty to act properly or prevent intervention where the evidence supports it.
6. The judge was entitled to treat the removal application as a stand-alone case-management decision and to determine it summarily. The appeal court would not reweigh facts or evidence merely because another judge might have reached a different conclusion.
7. The respondents were the successful parties. The appellant could be ordered personally to pay costs, while his entitlement to an indemnity from the estates or trust depended on whether the litigation costs were properly incurred. The judge was entitled to deny that indemnity for hostile litigation while preserving the indemnity for proper administration costs. Indemnity costs were also justified by conduct which took the case out of the norm.

• High Court, Chancery Appeals: District Judge Wales’s order of 3 December 2024 was reviewed and the appeal was dismissed.
• District Judge Wales: The appellant was removed as executor and trustee, an independent professional trustee was appointed, and consequential costs orders were made.
• Permission to appeal: Granted by Michael Green J on 3 March 2025, with the stay continued.