Goodman v Goodman

 In Probate

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 Goodman V Goodman 2013In the case of Goodman v Goodman [2013] All ER 118 Newey J., on appeal from Master Bragge, has decided that an application to remove or replace an executor can be made under section 50 Administration of Justice Act 1985 before a grant of probate.

Jurisdiction to remove PRs

The ability to remove or replace an executor or executor, whether for failures in the administration or simply because they cannot get on is an important one. Two overlapping jurisdictions exist, in section 116 of the Senior Courts Act 1981 and section 50 of the Administration of Justice Act 1985. This latest decision determines the width of that overlap.

Section 116 gives the Court the power to appoint a person as administrator of the estate in priority to the person who would otherwise be entitled under the probate rules if “by reason of any special circumstances” it appears to the Court to “be necessary or expedient” to do so.

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In contrast, section 50 gives the court a discretion to “appoint a person … to act as personal representative of the deceased in place of the existing personal representative” or to terminate the appointment of one or more of the personal representatives. The application can only be made by a personal representative or beneficiary.

The argument in Goodman

The argument put forward in Goodman was that only section 116 applies to an estate where there has not been a grant of probate, so that section 50 applies only after a grant. This raised some fairly fundamental issues of probate law. Essentially, it asked whether an executor can be described as a personal representative before a grant of probate can be made.

Ultimately it is clear that an executor can be so described. Whereas an administrator of an estate owes his title to the grant of letters of administration, an executor is appointed by the Will and can take many steps in the administration well before the grant. Indeed, many estates are administered without a grant of probate. As was said in Redwood Music Ltd v B Feldman & Co Ltd [1979] RPC 1 the grant of probate is merely the “legal optics” through which the Will is looked. Once this is understood it is clear that an executor is a “personal representative” even before a grant and so can be removed from his post before a grant of probate.

Conclusion

There is an oddity in this: why did Parliament provide for two different means to remove a personal representative, with (slightly) different tests for each? Ultimately, there is no answer to this, the reports that led to the implementation of section 50 do not explain clearly what it was intended to do, nor whether section 116 was considered.

The result is that in the case of executors appointed by Will it is possible to apply either under section 50 or under section 116. Applications under section 50 are made to the Chancery Division and can be made in existing proceedings (see CPR 57.13) whereas application under section 116 are conventionally made to the Probate Registry (see NCPR 52). This therefore provides a useful choice for the practitioner.

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