- December 21, 2020
- By Elizabeth Bower
- 0 comments
I am unhappy with a Trustee or Executor. What is the procedure for having them removed?
If you are unhappy with how a trustee or the executor or demonstrator of an estate (a personal representative (PR)) is managing a trust or administering an estate, it is possible to apply to the court to have them removed and to appoint a replacement. The court has a number of legislative powers under s.50 of the Administration of Justice Act 1986, s.116 of the Senior Courts Act 1981 and s.1 of the Judicial Trustees Act 1896 (although in reality, applications under the Judicial Trustees Act 1896 are very rare).
In order to remove a trustee or personal representative you must make a claim under the Part 8 procedure. The Part 8 procedure differs from the usual method of bringing a claim (the Part 7 procedure) in that it is aimed at disputes where the claimant is seeking the court’s decision on a matter which is unlikely to involve a substantial dispute of fact. Full details of the Part 8 procedure can be found under the Civil Procedure Rules (CPR) 8.
Unlike a Part 7 claim, particulars of claim (a document in which the claimant’s case is set out and the facts to be relied upon are specified) are not required. Instead, evidence in support of the claimant’s case is set out in the witness statement of their solicitor. In terms of the evidence needed, it is not necessary to prove that there is serious wrongdoing. The application should instead focus on the removal of the trustee or PR being in the best interests of the beneficiaries, and why. The court’s primary concern in such instances is the welfare of the beneficiaries.
Where there are disputes of fact (and the Part 7 procedure necessary) cross-examination of evidence at trial may be required. However, this is relatively rare. There is also guidance in caselaw which allows the court to deal with disputed facts without the need for trial.
In terms of the costs of such an application, the general rule under CPR 44.2 (2) (a) is that the unsuccessful party will be ordered to pay the costs of the successful party. This means that if your application for removal of a trustee or PR is successful, then they may be liable for your legal costs. However the opposite also applies, so careful consideration is needed before making such an application.
The procedure for removing a trustee or PR is complex and it is recommended that parties seek legal advice at the earliest opportunity.
If you are looking to remove a trustee or personal representative, please do not hesitate to contact one of our specialists who will be happy to help.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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