Administration Actions: Removing a Personal Representative
The role of a personal representative (PR) is critical in ensuring the proper administration of an estate. However, there are times when a PR—whether an executor named in a will or an administrator appointed under intestacy rules—fails to fulfil their duties effectively. In such cases, beneficiaries or other interested parties may seek to remove and replace the PR. Drawing on my extensive expertise as a barrister specialising in contentious probate, and as a full member of STEP, I provide practical and effective solutions in these disputes.
Just so you know, a personal representative is an umbrella term which includes executor and administrator (where there is an intestacy).
What Are Administration Actions?
Administration actions involve court applications to address issues arising during the management of an estate. One of the most contentious actions is the removal of a personal representative. This may be necessary when the PR fails to act in the best interests of the beneficiaries, is unable or unwilling to carry out their duties, or is in a position of conflict.
Reasons for seeking the removal of a PR include:
- A breakdown of trust and confidence between the PR and beneficiaries.
- A conflict of interest affecting the PR’s impartiality.
- Delays or mismanagement in administering the estate.
- Disputes between co-personal representatives.
Legal Grounds for Removal
The court has several statutory powers to remove or replace a PR:
- Section 116 of the Senior Courts Act 1981
This provision allows the court to pass over an executor or administrator’s right to a grant of representation if there are “special circumstances.” For instance, the court may intervene when the PR is unwilling or unable to administer the estate effectively, or where their continued role may harm the interests of the beneficiaries. - Section 50 of the Administration of Justice Act 1985
Under this section, the court can replace a PR with a substitute if it is deemed necessary for the proper administration of the estate. Unlike Section 116, this power can be invoked even after a grant of representation has been obtained, making it a broader and more flexible tool. - Inherent Jurisdiction of the Court
Although not specifically codified, the court retains an inherent jurisdiction to remove PRs in exceptional cases, particularly when their actions—or inaction—jeopardise the estate.
How Disputes Arise
Disputes often emerge in estates involving complex assets, large numbers of beneficiaries, or strained family relationships. Conflicts can be exacerbated when the PR:
- Demonstrates bias by favouring certain beneficiaries.
- Fails to communicate effectively or provide timely accounts of their actions.
- Is perceived as mishandling assets or delaying distribution.
A common scenario involves co-executors who cannot agree on key decisions, leading to a breakdown in the administration process. In such cases, the beneficiaries’ interests may be compromised, necessitating court intervention.
The Court’s Approach
When deciding whether to remove a PR, the court’s primary concern is the efficient and fair administration of the estate. Factors considered include:
- The wishes of the testator as expressed in the will.
- The interests of the beneficiaries as a whole.
- The conduct of the PR, including any evidence of wrongdoing or failure to act.
- The potential costs of removing and replacing the PR.
It is important to note that the court does not require evidence of serious misconduct to remove a PR. Even where there is no fault, a breakdown in relationships or practical difficulties in administering the estate can justify removal if it serves the beneficiaries’ best interests.
The Legal Process
An application to remove a PR is typically made in the Chancery Division of the High Court. The process involves:
- Filing an Application:
- The applicant, usually a beneficiary, must provide evidence to support the claim that the PR is unfit to continue in their role.
- Obtaining Evidence:
- This may include financial records, correspondence, or statements from other beneficiaries highlighting the PR’s shortcomings.
- Court Proceedings:
- The court may hold hearings to determine whether removal is necessary and, if so, appoint a suitable replacement.
Mediation is sometimes used to resolve disputes without the need for a court order, saving time and costs while preserving family relationships.
Costs and Risks
Applications to remove a PR can be costly and complex. The court has discretion over costs, and PRs defending their position may be entitled to an indemnity from the estate. However, if a PR’s conduct is found to be unreasonable or detrimental, they may be ordered to bear the costs personally. Beneficiaries considering such an action should seek professional advice to assess the risks and potential outcomes.
How I Can Help
With significant experience in contentious probate and administration actions, I offer tailored advice and representation to beneficiaries, executors, and administrators involved in disputes. My expertise includes:
- Assisting beneficiaries in removing PRs who fail to act in the estate’s best interests.
- Representing PRs defending allegations of mismanagement or conflict.
- Advising on complex estates, including those with multiple beneficiaries or disputed assets.
As a full member of STEP and with a distinction in the Administration of Estates exam, I provide specialist knowledge and a pragmatic approach to resolving disputes efficiently and effectively.
Why Choose Me?
Challenging the role of a personal representative requires a deep understanding of probate law, coupled with a strategic and sensitive approach. I bring these qualities to every case, ensuring that my clients receive clear advice and robust representation. My ability to balance the legal and personal aspects of these disputes helps clients achieve resolutions that protect their interests and preserve family relationships where possible.
Contact Me for Specialist Advice
If you are involved in a dispute over the administration of an estate or are considering an application to remove a personal representative, I can provide expert guidance tailored to your situation.