01329 822 333
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A Personal Representative is someone who has legal authority to administer a person’s Estate after they have died. They can either be appointed under the deceased person’s Last Will (in which case they are referred to as an Executor or Executrix if they are a woman) or they can apply to be a Personal Representative if the deceased person either did not make a valid Will or did not appoint an Executor under it. Such a person, if appointed, is known as an Administrator (or Administratrix if they are a woman). Under the Laws of Intestacy, there is a limited category of people who can apply to become a Personal Representative if the deceased person did not leave a Will or appoint an Executor. Invariably, the person so appointed will be the deceased’s next of kin or a close family member of the deceased person.
A Personal Representative has an overriding duty to collect in the Estate of the deceased person and administer it in accordance with the terms of the Will or if there is no Will, in accordance with the Rules of Intestacy as set out in Section 46 of the Administration or Estates Act 1925.
If a Personal Representative appointed under a Will does not wish to act, then provided they have not taken any steps to administer the Estate (referred to as “intermeddling”) then they can simply renounce (resign) their appointment and another person can be substituted in accordance with the provisions of the deceased’s Will if there is a named alternative Executor. If there is no provision in the Will for another person to stand as Executor, then the Personal Representative will be someone entitled to take out a Grant under the Laws of Intestacy.
In a situation where the Personal Representative is not administering the Estate, or is incapable of doing so, then an application can be made under Section 50 of the Administration of Justice Act 1985 to remove the individual concerned.
Grounds for removal can be varied but usually relate to issues of either capability or conduct and often include matters such as:-
- where the Personal Representative has failed to administer and distribute the Estate correctly; or
- where there is a potential conflict of interest between the personal interests of the Personal Representative and their obligation to the deceased person’s Estate; or
- where there is a lack of honesty or fidelity on the part of the Personal Representative; or
- where there is an inordinate delay in the Personal Representative acting in the administration of the Estate; or
- where the Personal Representative is endangering Estate property through say incompetent financial decision-making; or
- where for health reasons, the Personal Representative can no longer act in the administration of the Estate.
An application under Section 50 to the Chancey Division of the High Court can be made by an existing Personal Representative or by a beneficiary of the Estate. Any proposed substitute Personal Representative must be shown to be an appropriate individual and he or she must consent to the proposed appointment.
The Court has wide discretion as to whether or not to remove a Personal Representative. There must however be clear and compelling reasons for the Court to do so. Bad relations alone between the Personal Representative and the beneficiaries will not be enough. Unless there is evidence of significant wrongdoing, in which case the Court will almost certainly order that a Personal Representative be removed, the Court will take into account a number of factors in deciding whether or not to remove a Personal Representative. The Court will have regard to the fact that it was the deceased who chose the Personal Representative to administer the Estate, and would not want to change this unless there are serious grounds for doing so. The Court would also have regard to the increased costs that will arise from removing a Personal Representative and appointing a substitute.
Often the removal of a Personal Representative can be achieved by agreement which is much quicker and cheaper than having the matter determined by the Court. If the matter proceeds to a contested hearing, the Personal Representatives must be prepared to defend their position, appreciating that if their actions result in the Court ordering that they be removed, they are likely to face having to pay the costs of the application, which could be sizeable.
It is not unusual for a Court to want any substitute Personal Representative to be an independent professional person, thereby minimising the risk of further issues arising in the future administration of the Estate.
Seeking the removal of a Personal Representative is not therefore straightforward and it is advisable to get expert assistance and advice at an early juncture if you have concerns as to how an Estate is being administered.
If you wish to discuss the possibility of removing a Personal Representative or are a Personal Representative who opposes an application for your removal, please contact Michael Flaherty in our Dispute Resolution Department who has considerable experience in such matters.
Please call us on: 01329 822 333
