Martin John Woolls v Lisa Ann Byrtt

Removal under section 50 of the Administration of Justice Act 1985 is governed by the welfare of the beneficiaries as a whole. Proof of wrongdoing is unnecessary, but the court must assess the practical effect of the alleged conduct, the prospects and proportionality of any proposed claims, the testator’s choice of executor, beneficiaries’ competing interests and the cost of replacement. Hostility or a conflict of interest will not, without more, justify removal where the testator impliedly authorised the conflict. A genuinely arguable claim may require investigation, but speculative or uneconomic litigation will not ordinarily justify appointing a professional executor. Probate challenges should be pursued through probate proceedings, and discrete construction or accounting issues may be addressed through directions proceedings.

The claimant and defendant were the children of the deceased. The defendant was the sole executor under the deceased’s 2023 will, which divided the residue equally between them. The claimant sought her removal under section 50 of the Administration of Justice Act 1985 and the appointment of an independent professional executor.

The application relied on alleged undue influence and fraud concerning the 2021 and 2023 wills, withdrawals from the deceased’s bank account, unpaid rent, a possible double portion, payments made by the defendant for estate management and the conduct of a property sale. The central issue was whether removal was in the best interests of the beneficiaries as a whole.

1. Outcome. The claim for removal of the defendant and appointment of a professional executor was dismissed.
2. Section 50 confers a discretionary jurisdiction. The guiding consideration is the proper administration of the estate and the welfare of the beneficiaries as a whole. The court need not find wrongdoing, but material wrongdoing or fault, inability to administer the estate, or a relationship breakdown making administration difficult may justify replacement. The testator’s wishes, the beneficiaries’ views and the cost of replacement are relevant considerations.
3. The court applied the Folkes approach. An allegation should have a reasonable prospect of success, be supported by non-speculative evidence or evidence likely to be obtained at proportionate cost, and enhance the estate’s value relative to the costs and risks of pursuing it. The proposed claims concerning cash withdrawals and unpaid rent failed that threshold. The possible claim relating to the Santander balance was also too speculative and modest to justify professional administration.
4. The deceased’s appointment of the defendant, against the background of their financial dealings, impliedly authorised a degree of conflict when she considered those dealings as executor. That authorisation did not permit misappropriation, concealment, obstruction or unfair conduct. The minor unauthorised remuneration payment of £10,400 did not require removal because the defendant agreed to repay it and had not knowingly breached her duties.
5. The challenge to the wills was a probate matter, not a removal issue. Pending a probate claim, the defendant remained the valid executor and was neutral in that capacity. A dispute concerning the alleged double portion could be addressed between the parties through an application under CPR Part 64, with disclosure and protective orders if necessary.
6. The criticisms of the High Street sale did not establish administration contrary to the beneficiaries’ interests. The remaining property sales and distribution could be managed by the defendant with professional assistance at proportionate cost.