CH-2025-BRS-000001 - [2025] EWHC 2373 (Ch)

Julian says that the district judge misapplied the relevant legal principles, failing to establish that his continuation in office would impede the due administration of the estate or cause harm to the beneficiaries. Moreover, no substantial evidence was presented to show that Julian acted in breach of fiduciary duty or that his removal was necessary for the proper administration of the estate. Nor did he make any “proper finding that either [of Jean’s or Alexander’s] estate was endangered, [or] that the welfare of the beneficiaries was compromised”.

But, on the authorities, none of these formulations is the test. As stated by Chief Master Marsh in Harris v Earwicker [2015] EWHC 1915 (Ch), [9]) the test is

“ … whether the administration of the estate is being carried out properly. Put another way, when looking at the welfare of the beneficiaries, is it in their best interests to replace one or more of the personal representatives?”

And, in Schumacher v Clarke [2019] EWHC 1031 (Ch), [28], the same judge said:

“ … The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised … ”

The judge held (at [19](2)) that personal hostility was now placing significant hurdles in the way of finalising the administration of the estates, and (at [19](4)) had had a direct impact on that administration. He gave his reasons for that finding. These included Julian’s various conflicts of interest. Julian as trustee of the 2008 trust had power to appoint the trust fund among a class including himself (at [19](3)), although he was not appointed an original trustee (and therefore cannot claim to have been impliedly authorised to make an appointment in his own favour) (at [19](3)(g)). Julian also had conflicts of interest over his desire to help preserve Courtfield Road as a home for Vanessa (at [19](4)), and in relation to his claims against the estate and claims of the estate against the beneficiaries (including himself) (at [19](5)-(7)). Even though Julian was appointed executor by Jean and Alexander respectively, that does not dispense him from observing his fiduciary duties to act in the best interests of all the beneficiaries (at [19](9)), and his discretionary decisions can still be challenged where the evidence supports it. The delay in completing the administration was worrying (at [19](8)).

In my judgment, these were findings open to the judge on the evidence, and matters which he was entitled to take into account in deciding to remove Julian. The fact that Julian does not agree with the judge’s findings, or his evaluative decision, and perhaps considers that another judge would have found and held differently on the same evidence, is irrelevant. The judge concluded (at [19](12)) that it was in the interests of the beneficiaries as a whole that the final steps of this administration should be completed by an independent professional trustee.

In reaching that decision, the judge expressly took into account (at [19](11)) the fact that “the appointment of professional executors and trustees will create a new and significant layer of expense which will diminish the value of the net estate to the detriment of all beneficiaries”. But he considered that it was in the interests of the beneficiaries, and the estates were of sufficient size to justify the extra expenditure. That evaluation was a matter for him and not for the appellate court, unless he went plainly wrong, ie it was a decision that no reasonable judge could have reached. I have looked carefully at the material before me. I am not satisfied that he did go “plainly wrong”. On the contrary, I think he made a sensible decision, and one which (on the material I have seen) I would have made myself.

The delays so far are enormous. The personal hostility between the parties is patent, as are Julian’s potential conflicts of interest. The hostility and conflicts are impeding the proper administration of the estates. In that administration, Courtfield Road is still to be dealt with, as are the various claims between the estates and the beneficiaries. At some point the trustees of the discretionary trust will have to decide how to apply the trust fund. None of these things is likely to be achieved by Julian in a sensible timescale and at modest cost. The value at stake is significant enough to be able to absorb the costs involved in appointing an independent trustee, and 50% of the beneficiaries wish this to happen. It is not necessary to decide whether Julian has been guilty of any devastavit or breach of trust. In my judgment, as in that of the judge, the welfare of the beneficiaries demands that he be replaced for the future. Accordingly, this ground of appeal fails.