The legal position on removing a personal representative before a grant of probate has been issued
Our team of specialist contentious probate lawyers are regularly asked about executors disputes and in particular removing a personal representative. One particularly common enquiry is whether a personal representative can be removed before a Grant of Probate has been issued. Here is a brief summary of the legal position:
Under section 116 of the Senior Courts Act 1981 the court has the power to remove (or ‘pass over’) a personal representative, more commonly referred to as an executor (or administrator), prior to the Grant of Probate.
Section 116 states:
(1) If by reason of any special circumstances it appears to the High Court to be
necessary or expedient to appoint as administrator some person other than the
person who, but for this section, would in accordance with probate rules have been
entitled to the grant, the court may in its discretion appoint as administrator such
person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the
court thinks fit.
The Court will consider whether there are either ‘special circumstances’ or whether it is ‘expedient or necessary’ to pass over the executor/administrator.
The court’s discretion on removing a personal representative is very wide and will be geared towards what is required for the proper and efficient administration of the estate.
It is not, for instance, generally necessary for the executor to be discredited before a removal order is made. The court will also take into account any breakdown in the relationship between the parties.
Decisions will often be made on the basis of what is in the beneficiaries’ best interests.
Allegations of delay and conflicts of interest are often given in support of a s116 application.
However, applications for removing a personal representative before a grant of probate is issued should not be made without good reason. A personal representative will not be passed over lightly, so we tend to use this mechanism as a last resort when all attempts at a constructive and voluntary resolution have broken down. As with all litigation the parties need to consider the legal costs that will be incurred, particularly as these can be awarded against the losing party.
If you would like to know more about removing a personal representative or wish to ‘pass over’ an executor or administrator prior to a Grant of Probate, or if you are facing an application yourself to be removed under s116, then call our specialist legal team now on 0333 888 0404 or send brief details in an email to us at [email protected]