Removing a Trustee

There are circumstances where a trustee simply no longer wishes to act and wishes to step down. Equally a trustee may have concerns about another trustee or the beneficiaries of the trust may be unhappy about the way the trust is being managed and want to have a trustee replaced.

The trust instrument itself may have an express power in terms of removal or replacement, alternatively the Trustee Act may be employed to give effect to what is required. We can review the circumstances and advise on the options available and when or whether court application is necessary.

Removal of an Executor

Even with a valid Will, it may be that a beneficiary or other executor under the Will feels that the estate has been mishandled by an Executor.

Executors owe a duty to the beneficiaries to manage the estate with care.

Disputes can arise if, for example, a beneficiary feels as though the Executors are not keeping proper accounts or using money or assets from the estate otherwise than dictated in the Will.

Executors / Trustees have responsibilities when dealing with Estates and as many Executors are also beneficiaries, it is important they do not act in their own best interest rather than carrying out their proper duties. Legal advice should be taken if the Executors are struggling to deal with competing beneficiary demands; or if their inability to work effectively together means the Estate is not being administered at all.

Similarly, a beneficiary should also seek legal advice if they have concerns over the handling of the estate by the Executor.

Executors on occasion fall out and given that the actions mut be joint then this can cause stagnation in an estate.

If there is a dispute that cannot be resolved it is likely an application to the court will have to be made.

The power to replace executors is now given by section 50(1) of the Administration of Justice Act 1985, which provides:

“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—

• appoint a person (in this section called a substituted personal representative or representatives of the deceased or any of them; or
• if there are two or more existing personal representatives of the deceased, terminate the appointment of one of those persons.”

The principles on which the Court will act are conveniently set out by Chief Master Marsh (as he then was) in Harris v Earwicker [2015] EWHC 1915 (Ch) at [9]:

“The relevant principles for the purposes of this application may be summarised in the following way:

1. It is unnecessary for the court to find wrongdoing or fault on the part of the personal 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?
2. 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 If, however, there may be some proper criticism of the personal representatives, but it is minor and will not affect the administration the estate or its assets, it may well not be necessary to exercise the power.
3. The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account.
4. The wishes of the beneficiaries may also be 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.
5. 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.
6. 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.”

A recent decision in the case of Waite v Skilton & Ors [2024] EWHC 3153 (Ch) provides a useful breakdown as to the approach to be considered and analysis by the Judge (Recorder Adrian Jack, sitting as a High Court Judge) as to how the case of a disputed application to remove and replace executors.

We can help assess the merits of the position if faced with these problems and advise on appropriate steps.

Please contact us for further advice and assistance.