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

In his skeleton argument for permission to appeal, Julian said that removal of an executor is justified only where his or her conduct endangers trust administration or prevents the proper execution of the trust, and requires evidence of serious misconduct, conflict of interest or incapacity to perform the duties of the office. In my judgment, these submissions are not justified on the authorities.

The removal of executors from office is governed by the Administration of Justice Act 1985, section 50, which relevantly reads:

“(1)

Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—

(a)

appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or

(b)

if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons.

[ … ]”

In relation to section 50, I was referred to the well-known decision of the Privy Council in Letterstedt v Broers (1884) 9 App Cas 371. That case was actually about the removal of a trustee, but in The Thomas and Agnes Carvel Foundation v Carvel [2008] Ch 395, [44]-[47], Lewison J made clear that the same principles applied to the removal of a personal representative. He cited several relevant passages from the speech of Lord Blackburn

The first passage is this (at page 306):

“It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet, if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.”

After that passage, Lewison J commented as follows:

“46.

The overriding consideration is, therefore, whether the trusts are being properly executed; or, as [Lord Blackburn] put it in a later passage, the main guide must be ‘the welfare of the beneficiaries’. He referred to cases in which there was a conflict between trustee and beneficiary and continued:

‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’

47.

He added, however, at page 389:

‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded’.”

I need not set out any other passages from Letterstedt v Broers, because, much more recently, Chief Master Marsh in Harris v Earwicker [2015] EWHC 1915 (Ch) summarised the modern position in these words:

“[9] i. It is unnecessary for the court to find wrongdoing or fault on the part of the personal representatives. The guiding principle 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?

ii.

If there is wrongdoing or fault and it is material such as to endanger the estate the court is very likely to exercise its powers under section 50. If, however, there may be some proper criticism of the personal representatives, but it is minor and will not affect the administration of the estate or its assets, it may well not be necessary to exercise the power.

iii.

The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account.

iv.

The wishes of the beneficiaries may also be relevant. I would add, however, that the beneficiaries, or some of them, have no right to demand replacement and the court has to make a balanced judgment taking a broad view about what is in the interests of the beneficiaries as a whole. This is particularly important where, as here, there are competing points of view.

v.

The court needs to consider whether, in the absence of significant wrongdoing or fault, it has become impossible or difficult for the personal representatives to complete the administration of the estate or administer the will trusts. The court must review what has been done to administer the estate and what remains to be done. A breakdown of the relationship between some or all of the beneficiaries and the personal representatives will not without more justify their replacement. If, however, the breakdown of relations makes the task of the personal representatives difficult or impossible, replacement may be the only option.

vi.

The additional cost of replacing some or all of the personal representatives, particularly where it is proposed to appoint professional persons, is a material consideration. The size of estate and the scope and cost of the work which will be needed will have to be considered.”

I should add that the Chief Master’s decision has been applied in a number of subsequent cases including Pegler v McDonald [2022] EWHC 2405 (Ch), Fawcett v Dolo [2024] EWHC 2655 (Ch), Hanson v Coleman [2024] EWHC 3589 (Ch), and Osborne v Osborne [2025] EWHC 455 (Ch). It is a much cited and well-worn authority.

In Long v Rodman [2019] EWHC 753 (Ch), the same judge dealt with another case under section 50. Of particular significance in this case is the fact, that, as Chief Master Marsh said,

“17.

This application under section 50 is unusual. Often such applications are made after a long period with an administrator in post based on the administrator’s failure to make substantial progress with the administration of the estate. In this case it is broadly common ground that most of the steps that needed to be taken in the estate have been completed or, where that is not the case, a way forward has been agreed that will not involve Mr Long being required to take further action on behalf of Norman’s estate. It is also common ground between the parties that the relationship between Mr Long and the Rodman sisters has completely broken down. The evidence is replete with accusation and counter-accusation …”

The Chief Master went on to say:

“19.

The discretion under section 50 is to be exercised in a pragmatic way … The need for the court to take a pragmatic approach to the jurisdiction has been disregarded by parties who have, on both sides, adopted an approach that is indulgent and wasteful. Much of the evidence is of limited assistance to the court.

20.

At the hearing the court has to consider first, whether the circumstances are such that the discretion is engaged, secondly whether an order should be made under section 50 and, thirdly, if so, what order is appropriate. I would add that it will only rarely be necessary for an application under section 50 to result in a trial because it is usually not normally necessary to make findings in relation to disputed issues of fact for the purposes of dealing with the application.

21.

The principles to be applied are not in dispute. The applicants have relied on my attempt to summarise them in Harris v Earwicker [2015] EWHC 1915 (Ch) at [9] … ”

The Chief Master then set this out (as reproduced above). Then he said:

“22.

The core guide to the exercise of the court’s discretion derives from the judgment of Lord Blackburn in Letterstedt v Broers (1884) 9 App Cas 371, as applied to applications under section 50 by Lewison J in Thomas and Agnes Carvel Foundation v Carvel [2008] Ch 395. It is the welfare of the beneficiaries.”

In the result, the Chief Master removed Mr Long, for (at [68]),

“he has conflicts of interest that make it inappropriate for him to remain in office.”

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

“18.

It is critical for present purposes that the core concern of the court is what is in the best interests of the beneficiaries looking at their interests as a whole. 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. If there is a good arguable case about the conduct of one or more of the executors or trustees, that may well be sufficient to engage the court's discretionary power under s.50, or the inherent jurisdiction, and make some change of administrator or trustee inevitable. The jurisdiction is quite unlike ordinary inter partes litigation in which one party, of necessity, seeks to prove the facts its cause of action against another party.”

Harris, Long and Schumacher are, of course the three decisions of Chief Master Marsh referred to in the judgment of the judge below. I add only that it is clear that, under section 50, the burden of proof to establish sufficient grounds for removing a personal representative lies upon the respondents to this appeal. I do not think that it is necessary for me to cite from any other decision in this connection.