Removing Personal Representatives
The recent decision of Newey J in Re Kershaw, Kershaw v. Micklethwaite  EWHC 506 (Ch) contains important guidance concerning the principles upon which the Court should exercise its jurisdiction to remove personal representatives.
Statute provides for two mechanisms for removing personal representatives. First, by an application in the Family Division to ‘pass over’ an executor or potential administrator under the Senior Courts Act 1981, s 116 (formerly the Supreme Court Act 1981); such an application can only be made before a grant of representation has been obtained. The alternative is an application in the Chancery Division – which can be made before or after a grant – under the Administration of Justice Act 1985, s 50.
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In principle, there is no reason why the approach of the courts should differ depending upon which procedure is used. But there are good practical reasons for applying under s 116 before a grant is made. Not least, if an application is made under s 50, this will not prevent an executor from obtaining a grant – he can then continue to administer the estate until the application comes to be heard. This is what happened in Re Kershaw. The fact that the administration of the estate is well-advanced would itself usually be a good reason weighing against a personal representative’s removal.
The judgement in Re Kershaw
Three important points of principle emerge from Newey J’s judgment:
- He confirms that the general approach is the same as that in cases concerning the removal of trustees, as to which see Letterstedt v. Broers (1848) 9 App Cas 371. In short, the overriding consideration is the welfare of the beneficiaries or whether the estate is being properly administered. Newey J said that ‘if anything, the court should remove a trustee more readily than an executor’ (see the judgment at paragraph 10).
- Newey J considered the extent to which hostility between beneficiaries and personal representatives is relevant to such an application. In Re Kershaw, the application had been made by the testatrix’s son. The three executors were her two daughters and an accountant who had acted for Mrs Kershaw for many years. It was common ground between the parties that the relationship between the applicant and his two sisters had entirely broken down. Indeed, according to the personal representatives’ evidence, the claim was part of a vendetta on the part of the applicant against one of his sisters. Newey J reaffirmed that mere hostility, friction or the breakdown in the relationship between the parties is not enough to warrant an executor’s removal. Such hostility will only be relevant ‘if it is obstructing the administration of the estate or […] sometimes if it capable of doing so.’
- The decision is the first English case to consider whether any weight ought to be given to the testator’s wishes. To remove an executor is a particularly drastic step. Unlike the removal of an administrator of an intestate’s estate, it involves the Court overruling the testator’s choice of personal representative. (In some situations, that may matter more than in others: contrast a situation where one child of the family has been chosen as executor instead of others with one in which a will simply appoints a particular bank.) To put the objection at its highest, the exercise of the jurisdiction can constitute an interfere with testamentary freedom.In the Irish case of Dunne v. Heffernan  3 IR 431, Lynch J said (at 443) that a person entitled to a grant of administration ‘may be passed over more readily […] than where an executor is appointed and accepts the appointment by proving the will when weighty reasons must be established before the grant of probate would be revoked and cancelled […] and the testator’s chosen representative thereby removed, and somebody not chosen by the testator appointed[.]’.
In Re Kershaw, the testatrix had considered carefully, even agonised over, who to appoint as her executors. The submission made on behalf of the applicant was that a testator’s wishes are irrelevant because the court’s overriding concern is simply the interests of the beneficiaries. Newey J disagreed. He said that a testator’s choice ‘is capable of being of relevance, if on no other basis than because the testator may be expected to have knowledge of the character, attitudes and relationships involved which the court will lack.’
Many of the older cases, including Letterstedt v. Broers, suggest that a trustee whose continuation in office was challenged who would usually be advised simply to resign. That is much less likely to be the case today: a trustee who is remunerated and who has his professional or commercial reputation to consider may be much more reluctant simply to step aside. The decision in Re Kershaw provides useful authority for personal representatives or trustees who wish to resist their removal, particularly where such applications are founded upon allegations of hostility or conflict. At least in the case of executors, one can expect that the Court will be more reluctant to order their replacement where the testator had an established personal or professional relationship with his chosen executor.
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