REMOVING AND REPLACING TRUSTEES AND PERSONAL

REPRESENTATIVES

A PRACTICAL GUIDE

James Weale
 1. The harmonious relations which may have formed the background to the
conception of a trust (or will) do not always last. Moreover, persons who were
initially thought to be capable of carrying out the administration transparently,
efficiently and in the interests of beneficiaries often disappoint. In such cases, it is
essential that the removal of such persons may be secured by the remaining office-
holders or beneficiaries.

2. Sections 1 – 2 of this paper set out the jurisdictional bases and procedure for
removing trustees and personal representatives. Section 3 considers the parallel
jurisdiction for the appointment of a judicial trustee. Section 4 considers the
exercise of the Court’s discretion in standard hostile applications. Finally, points
of practice are considered in Section 5.

3. The following table provides a roadmap through this guide by reference to a

checklist of the questions to ask before issuing a claim or application. Where it is
sought to remove someone who is both trustee and personal representative, both
columns should be referred to1.

1Alkin v Raymond [2010] W.T.L.R. 1117, provides a recent example in which it was sought to remove
persons who were both executors and trustees.

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 ROADMAP

TRUSTEES PRs
(Section 1) (Section 2)

Can removal take Is there an express power

place without the of removal in the trust deed
Court’s involvement? which can be exercised?
(Section 1A)
Not possible
Is the Trustee dead, abroad
or obviously incapable or
unfit (Section 36 TA1925)?
(Section 1B)

Are all beneficiaries

unanimous in seeking
removal (Section 19
TOLATA 1996)? (Section
1C)

[If there is no
alternative but to
apply to the Court] See Section 4
Are the facts likely to
persuade the Court
to exercise its
discretion?

Who has standing to Existing trustee or any Existing PR or any

bring a claim? person beneficially interest person beneficially
in the trust (Section 58(1) interested in the estate
TA1925) (Section 50(5) AJA1985)

Is the continuing
administration of the Consideration should be given to applying for the
trust/estate likely to appointment of a judicial trustee (Section 3).
give rise to complex
and contentious
issues?

Practice Points See Section 5

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 SECTION 1 - TRUSTEES
REMOVING TRUSTEES OUT OF COURT

4. The removal of trustees need not be contentious or involve court proceedings at

all. This is obviously to be preferred if the circumstances allow for it. This section
sets out the common circumstances in which removal can be effected without
litigation.

A Express power in the trust deed (removal)

5. It is possible that the trust deed may itself provide a power of removal to a person
named in the trust (such as the settlor). Provided that that power is exercised
properly for the benefit of the beneficiaries and not to serve the interests of the
person holding such a power, there is no reason why the exercise of such a power
should not be effective.

B Section 36 Trustee Act 1925 (substitution only)

6. Section 36 Trustee Act 1925 confers upon the person with a power of
appointment or, if there is no such person or no such person able or willing to
exercise that power, the remaining trustees, the power to substitute an existing
trustee. The circumstances in which that power may be exercised are exhaustively
set out in Section 36(1) which provides for the removal of a trustee who:
a. is dead;
b. remains out of the United Kingdom for more than 12 months;
c. desires to be discharged;
d. refuses to act;
e. is an infant;
f. is unfit to act2; or
g. is incapable of acting3.

7. Section 36 provides a straightforward means of replacing a trustee in non-

contentious cases. Where there is likely to be a dispute over whether, for example
a trustee is “unfit” or “incapable”, however, it would be inadvisable to seek to

2 There is very little authority as to the meaning of “unfitness”. It is clear, however, that it extends beyond

mental/physical illness, and includes matters going to general suitability such as bankruptcy and the conviction
of a serious criminal offence.
3 “Incapacity” should not be read in light of the Mental Capacity Act 2005, which requires it to be shown that

a person is unable to make a decision for himself in relation to the matter (Section 2(1)). Where the person
with the power of appointment himself lacks capacity, the appointment should be made by the continuing
trustees: Re Coates to Parsons (1886) 34 Ch D 370.

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 replace the trustee without the Court’s involvement4. Further, where the basis
relied upon for removing the trustee relates to his mental capacity, it will be
necessary to involve the Court of Protection where the trustee is also a beneficiary
(Sections 36(9) and 54(2)).

C Trusts of Land and Appointment of Trustees Act 1996 (removal and

substitution)

8. Where all the beneficiaries are in agreement, an additional means of removing a

trustee is provided by Section 19 TOLATA5 on the basis of the beneficiaries’
consent. However, this power is subject to significant limitations. First, the trust
instrument must fail to nominate a person with a power to appoint. Second, the
power may only be exercised where all the beneficiaries are of full age and capacity
and (together) are absolutely entitled to the property forming the subject-matter of
the trust6. Third, the beneficiaries must be in unanimous agreement to remove the
trustee. Finally, the operation of Section 19 may be excluded by the deed creating
the trust.

9. The procedure under Section 19 is straightforward. The beneficiaries simply need

to serve their direction upon the retiring trustee (in the case of retirement) or all of
the trustees (in the case of replacement). Following such a direction, the trustee
must retire.

REMOVAL BY THE COURT

JURISDICTION

10. Where removal cannot be achieved without resort to litigation then (save for the
appointment of a judicial trustee considered in Section 3, below) there are
essentially two possibilities:

A. Substitution7 under Section 41 Trustee Act 1925

B. Removal/Substitution under the Court’s inherent jurisdiction
4 An application should instead be made pursuant to Section 41 Trustee Act 1985 (see below).
5 Further provision for the removal of a trustee is provided for by Section 20. However, in order to succeed it
is necessary to establish that the trustee is “incapable by reason of mental disorder of exercising his functions as trustee.”
6 It is not at all clear whether the consent of those who are mere objects of a discretionary trust, rather than
those who have a life or remainder interest, is required. It is tentatively suggested that, by analogy with the
principle in Saunders v Vautier, the consent of discretionary beneficiaries is required.

7 No jurisdiction is provided under Section 41 for the Court simply to remove a trustee without a replacement.

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 11. Put shortly, a claim under Section 41 is likely to be appropriate where it is sought
to appoint a new trustee in place of the existing trustee and where there is no
substantial factual dispute8. In all other cases, recourse should be had to the
Court’s inherent jurisdiction. Even where Section 41 is relied upon, however, it is
always sensible to plead the Court’s inherent jurisdiction in the alternative.

A. Section 41 Trustee Act 1925 (substitution only)

12. Section 41(1) is by far the most common instrument used to remove trustees
through the Court. The broad powers conferred by that section are as follows:

The court may, whenever it is expedient to appoint a new trustee or new trustees, and it
is found inexpedient difficult or impracticable so to do without the assistance of the court,
make an order appointing a new trustee or new trustees either in substitution for or in
addition to any existing trustee or trustees, or although there is no existing trustee.

In particular and without prejudice to the generality of the foregoing provision, the court
may make an order appointing a new trustee in substitution for a trustee who lacks
capacity to exercise his functions as trustee, or is a bankrupt, or is a corporation which
is in liquidation or has been dissolved.

13. It should be noted that Section 41(1) will only be exercised where there is no
other means by which a trustee may be substituted. Thus, if the trustee could be
removed pursuant to an express power or Section 36 and there is a person who is
able and willing to exercise that power, an application under Section 41 is not
appropriate9.

14. The specific examples listed in the second section of Section 41(1) should pose no
difficulty in principle: the question of whether or not a trustee has been made
bankrupt or has been assessed as incapable in accordance with the Mental Health
Act is likely to be relatively straightforward to ascertain. Aside from those specific
examples, however, Section 41(1) is silent as to when it may be “expedient” to
replace a trustee. Further, those authorities which indicate the Court’s approach to
Section 41 are few and far between. The Court’s approach under Section 41(1) is
considered in Section 4, below.

8 In Re Henderson [1940] 1 Ch 764, Bennett J held at 767-768: “Whenever there is a dispute as to some fact, as in
that case, it may be that the Court should not exercise the jurisdiction under s. 41 against the will of a trustee who wants to
continue to act as such”. It is therefore advisable to plead both Section 41 and the Court’s inherent jurisdiction in
the alternative if there is any indication of a potential dispute of fact.

9 Re Higginbottom [1892] 3 Ch 132. In cases of doubt, or where it is sought to remove the person who has
the power of appointment, Section 41 should be used.

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 B. The Court’s inherent jurisdiction (substitution or removal)

15. In the leading case, Letterstedt v Broers10, Lord Blackburn noted that: “It is not
disputed that there is a jurisdiction [to remove and substitute trustees]” and “that the
jurisdiction... is merely ancillary to its principal duty - to see that the trusts are properly
executed.”

16. The inherent jurisdiction has been relied upon in a number of recent decisions
including Isaac v Isaac11 and Jones v Firkin-Flood12.

17. It is now clear that those general principles which govern the application of
Section 41 are no different from those which apply to the Court’s inherent
jurisdiction. These are considered together in Section 4, below.

PROCEDURE

18. In many cases, the decision to remove trustee will have been taken following the
commencement of proceedings against a trustee on other grounds. If so, the
appropriate course is to issue an application within those proceedings rather than
to initiate a new claim.

19. A claim/application may be brought by an existing trustee or “any person

beneficially interested” in the subject-matter of the trust13. It is likely that the latter
covers those who are merely the object of a fiduciary power14.

20. As noted above, reliance upon Section 41 is not appropriate where there is likely
to be a substantial dispute of fact. Ordinarily, therefore, a claim pursuant to
Section 41 should be by way of a Part 8 Claim (notwithstanding that the trustee
may oppose his removal). Where it is sought to remove a trustee under the
Court’s inherent jurisdiction either a Part 8 or Part 7 Claim may be used
depending upon the nature of the dispute. In either case, the claim will normally
be issued in the High Court15. Where the Claimant is a beneficiary, all the trustees

10 [1881-85] All ER Rep 882 at 886.

11 [2005] EWHC 535 (Ch). Park J considered the applicable principles at [65] – [72].
12 [2008] EWHC 2417 (Ch).

13 Section 58(1) Trustee Act 1925.

14 See Freeman v Ansbacher Trustees (Jersey) Ltd [2009] 12 ITELR 207.
15 Section 23 County Courts Act 1984 provides for the County Court to have all the jurisdiction of the High

Court to hear and determine proceedings for the administration of the estate of a deceased person, where the
estate does not exceed in amount or value the county court limit (£30,000).

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 should be joined as parties. Regardless of the Claimant, all beneficiaries should
also be jointed as Defendants.

21. A signed consent to act by the proposed replacement should be included in the
evidence filed in support of the claim together with a witness statement (ideally
from a close associate of the replacement) attesting to his fitness to act as
trustee16.

SECTION 2 –PERSONAL REPRESENTATIVES

22. The options open to a party seeking removal of personal representatives (as
compared with trustees) are far more limited.

23. In particular, there is no statutory provision for a beneficiary or personal

representatives to procure removal or substitution without the Court’s
involvement17. Further, Section 41(4) Trustee Act 1985 explicitly precludes the
appointment by the Court of an executor or administrator18.

JURISDICTION

24. In the absence of the Court taking over the administration of the estate pursuant
to Part 64 or the appointment of a judicial trustee, Section 50 Administration of
Justice Act 1985 constitutes the only jurisdictional basis for the removal or
substitution of personal representatives.

25. Wide discretionary powers are conferred upon the Court under Section 50(1) AJA
1985 as follows:

(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

16Where it is sought to appoint a corporate trustee, the court should be provided for the basis upon which
remuneration is to be paid in order to be in a position to make an order pursuant to Section 42 Trustee Act
1925.

17 Historically, personal representatives were assumed to hold their position for life and there was no
jurisdiction which provided for their retirement: Re Ratcliff [1898] 2 Ch 352 at 356.
18 That sub-section states: “Nothing in this section gives power to appoint an executor or administrator.”

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 (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.

26. The principles on which the Court may exercise its discretion under Section 50 are
reviewed in Section 4, below.

PROCEDURE

27. The persons with standing under Section 50 are existing personal representatives
and those who are “beneficially interested” in the Deceased’s estate19. The latter
covers discretionary beneficiaries as well as those with a direct entitlement.

28. As with trustees, the removal of personal representatives may be sought either
from the outset or in the context of ongoing litigation. In either case, the
procedure is exhaustively set out in CPR Part 57.13 together with paragraphs 12-
13 of the Practice Direction to Part 57.

29. Those requirements may be summarised as follows:

(1) The claim/application must be accompanied by a sealed copy of the grant

of probate or letters of administration;

(2) Written evidence should be filed setting out the grounds of the claim and
should include details (so far as they are known) of the following:

(i) brief details of the property comprised in the estate, with an

approximate estimate of its capital value and any income that is
received from it;

(ii) brief details of the liabilities of the estate;

(iii) the names and addresses of the persons who are in possession of
the documents relating to the estate;

(iv) the names of the beneficiaries and their respective interests in the
estate; and

19 Section 50(5) Administration of Justice Act 1985.

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 (v) the name, address and occupation of any proposed substituted
personal representative.

(3) Finally, if it is sought to substitute the personal representative with

another individual, the latter’s signed consent to act, together with written
evidence as to the fitness to act should be appended to the claim
form/application notice20.

30. The claim21/application should be made in the Chancery Division of the High
Court22 and every personal representative (together with all named beneficiaries)
should be joined as Defendants to the claim. It is likely that the Court will wish
to consider the views of the other personal representatives. Therefore, insofar as
they are likely to support the application, it is obviously sensible to adduce
witness statements on their behalf.

Removal of an executor prior to a grant of probate

31. Until very recently, it was not possible to rely upon Section 50 where an executor
had failed to a take out a grant of probate. This followed from the Court of
Appeal’s decision in Perotti v Watson [2001] EWCA Civ 116 which had determined
that no claim could be made for the removal of an executor prior to a grant of
probate having been taken out on the basis that until the executor had taken out a
grant, there was nothing from which to remove him. However, that decision has
now effectively been overturned by a 2010 amendment to PD57 which now
provides (at paragraph 13.1(1)(b)) for an executor to be removed prior to a grant.

20 The written evidence of fitness to act should ideally be set out in a witness statement of someone who has

been closely associated for a significant period with the person whom it is sought to appoint.
21 The Claim may be either Part 7 or Part 8. However, given the requirements for the filing of evidence, it is

usually sensible to initiate the claim under Part 8.

22 CPR 57.13(2). In most cases, the matter will considered by a Chancery Master. However, it will be

appropriate for the matter to be referred to a judge if it is particularly complex or where fraud has been alleged.

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 SECTION 3 – JUDICIAL TRUSTEES
32. The Court enjoys a parallel jurisdiction to substitute a personal representative or
trustee with a judicial trustee pursuant to the Judicial Trustees Act 1896. The
purpose of the 1896 Act was described by Jenkins J in Re Ridsdel23 as “to provide
a middle course in cases where the administration of the estate by the ordinary trustees had
broken down and it was not desired to put the estate to the expense of a full administration”.

33. Prior to 1985, the only means by which the Court could replace a personal
representative was under the 1896 Act. Since the coming into force of the AJA
1985, the 1896 Act has largely been superseded. Furthermore, an application for
the appointment of a judicial trustee is liable to be more costly insofar as the
judicial trustee (unless a corporate trustee) is required to provide accounts to the
Court24.

34. The principal advantage conferred by the appointment of a judicial trustee is the
ability of the latter to obtain directions quickly and informally from the Court
(Section 1(4)). Thus where the continuing administration of the trust or estate is
liable to throw up contentious or complex issues, or where the administration is in
disarray following historic mismanagement, serious consideration should be given
to the appointment of a judicial trustee. In the usual case, however, the
appointment of a judicial trustee is unlikely to afford any advantage.

JURISDICTION

35. Jurisdiction for the appointment of a judicial trustee is provide for by Section 1
JTA 1896 as follows:

(1) Where application is made to the court by or on behalf of the person creating or
intending to create a trust, or by or on behalf of a trustee or beneficiary, the court
may, in its discretion, appoint a person (in this Act called a judicial trustee) to be a
trustee of that trust, either jointly with any other person or as sole trustee, and, if
sufficient cause is shown, in place of all or any existing trustees.

23 [1947] Ch. 597, at 605.

24Sections 9, 10 and 12 Judicial Trustee Rules 1983. It should also be noted that Section 11 Judicial Trustee
Rules 1983 expressly provides for remuneration up to 15% of the capital value of the trust property.

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 (2) The administration of the property of a deceased person, whether a testator or
intestate, shall be a trust, and the executor or administrator a trustee, within the
meaning of this Act.

(3) Any fit and proper person nominated for the purpose in the application may be
appointed a judicial trustee, and, in the absence of such nomination, or if the court is
not satisfied of the fitness of a person so nominated, an official of the court may be
appointed, and in any case a judicial trustee shall be subject to the control and
supervision of the court as an officer thereof.

(4) The court may, either on request or without request, give to a judicial trustee any
general or special directions in regard to the trust or the administration thereof.

36. It is generally preferable for the judicial trustee to act alone, however, there is
nothing in the Act to prevent the judicial trustee acting alongside an existing
trustee.

PROCEDURE

37. The application is made by way of a Part 8 claim (or as an application within
existing proceedings) to the Chancery Division of the High Court. The procedure
is governed by the Judicial Trustee Rules 1983. In brief, the claim/application
should be supported by an affidavit which includes the following matters:

(1) a short description of the trust and instrument by which it is, or is to be,
created;

(2) short particulars of the trust property, with an approximate estimate of its
income, and capital value;

(3) short particulars of the incumbrances (if any) affecting the trust property;

(4) particulars as to the persons who are in possession of the documents relating
to the trust;

(5) the names and addresses of the beneficiaries and short particulars of their
respective interests; and

(6) the name, address and description of the proposed judicial trustee (if any)
together with any proposal the applicant may make for his remuneration.

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 38. Unlike an application under Section 50, there is no requirement to provide a
signed consent to act or evidence as to fitness in respect of the prospective judicial
trustee. However, where it is sought to appoint someone other than a court
official (usually the Official Solicitor)25, it would be sensible to provide evidence
of fitness in order to satisfy Section 1(3) JTA26.

39. Where an application is made under Section 50, the Court may treat such an
application as though it were made pursuant to the Judicial Trustee Act (Section
50(4) AJA 1985) and vice versa (Section 1(7) JTA 1896). Thus, there is scope to
rely upon either provision notwithstanding that it has not been pleaded.

SECTION 4 – PRINCIPLES TO BE APPLIED

CONTENTIOUS CASES
40. This section considers the factors which a court will consider in the exercise of its
discretion in contentious applications to remove a trustee or personal
representative. It will be apparent that there is a substantial (if not complete)
overlap between Court’s approach under Section 50 AJA 1985, Section 41(1)
TA1925, Section 1 JTA 1896 and the Court’s inherent jurisdiction.

COMMON GENERAL PRINCIPLES APPLY TO ALL CASES

41. Those cases which have been reported tend to suggest that, whatever the
jurisdictional basis relied upon by a claimant, the overall approach is
fundamentally the same. This is not surprising in view of the similarity in scope of
the legislative regimes which respectively provide for removal/replacement:
“whenever it is expedient” (s.41), “may in its discretion” (s.50) and “may in its discretion”
(s.1).

42. Given the breadth of those provisions, and in the absence of any indication as to
manner in which the Court’s jurisdiction should be employed, it is unsurprising
that the Courts have sought to develop common general principles to be applied
in all cases based upon the jurisprudence governing the long-standing inherent
jurisdiction to remove trustees.
25There is no restriction on the persons who may appointed as judicial trustee provided they are a “fit and
proper” person (Section 1(3) Judicial Trustee Act 1983).
26 It should be noted that the Court is not bound to appoint an official trustee in the event that it is not
satisfied as to the fitness of the person sought to be appointed by the applicant, but may appoint some other
person: Douglas v Bolam [1900] 2 Ch 749.

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 43. In Thomas & Agnes Carvel Foundation v Carvel27 the Claimant foundation, a
beneficiary under the deceased’s will, sought the replacement of a personal based
upon, alternatively, Section 50 AJA and Section 1 JTA. Lewison J noted (at
paragraph 44):

It is common ground that, in the case of removal of a trustee, the court should act on the
principles laid down by Lord Blackburn in Letterstedt v Broers (1884) 9 App
Cas 371, and that in the case of removing a personal representative similar principles
should apply. Whether I am right in concluding that Pamela [the first defendant] is a
trustee; or whether she is no more than a personal representative, the principles are
therefore the same.

44. In the recent decision in Kershaw v Micklewhaite28, it was argued that a stricter
test should apply to the removal of a trustee than to the removal of an executor
on the basis that trustees (unlike executors) are often required to exercise a
discretion and individuals may be chosen because of the particular qualities that
they may bring in exercising that discretion. However, that suggestion was
explicitly rejected by Newey J who confirmed that the test was the same
irrespective of whether it was sought to remove a trustee or executor. His
Lordship held at [9]:

“In any case, I can see no good reason for the court to apply a stricter test when
considering whether to remove a trustee than it would apply with an executor. That an
executor might not be expected to exercise discretion to the same extent as a trustee, and
that an executor’s role is likely to be more transient than a trustee’s, suggest to me that,
if anything, the court should remove a trustee more readily than an executor.”

45. To the above, it might be added that a further reason for not applying a different
test is that it is liable to give rise to strange results in the event that the same
individual is appointed as both executor and trustee under the same will. In such
case, a disparity between the tests may result in that individual being removed as
executor whilst remaining as trustee.

27 [2008] Ch 395. See also Heyman v Dobson [2007] EWHC 3503 (Ch) at [18].
28 [2010] EWHC 506 (Ch).

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 SUMMARY OF THE APPLICABLE PRINCIPLES

46. There is a surprising dearth of reported cases which provide guidance as to the
Court’s approach pursuant to the specific provisions for removal provided for by
s.41 TA192529, Section 50 AJA198530 and s.1 JTA1896 or the Court’s inherent
jurisdiction31. The scarcity of authority may be explained in part by the fact that
the preponderance of cases are heard before Chancery Masters and that the
outcome of such cases is largely dependent upon findings of fact and/or the
exercise of the Court’s discretion. Furthermore, sensible trustees will often retire
of their own volition once a substantial question has been raised over their
continuation in office.

47. In all cases, however, the overall test to be applied is summarised by the leading
judgment of Lord Blackburn in Letterstedt v Broers as follows32:

“In exercising so delicate a jurisdiction as that of removing trustees, their lordships do not
venture to lay down any general rule beyond the very broad principle... that their main
guide must be the welfare of the beneficiaries... 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 of 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... it seems
to their lordships that the court might think proper to remove him.” [emphasis added]

48. Lord Blackburn’s seminal judgment has been consistently approved and relied
upon in later authorities. Thus the overarching guide governing the exercise of the
Court’s jurisdiction in all cases is whether the trust (or estate) is being properly
administered in the interests of the beneficiaries33.

29 In Re Weston’s Settlement [1968] 3 All E.R. 338, Lord Denning MR complained (at page 342) that: “with
the appointment of new trustees, the Trustee Act, 1925, gives no guide. It simply says the court may appoint new trustees
“whenever it is expedient”. There being no guidance in the statutes, it remains for the court to do the best it can.”
30 In the recent decision of the High Court in Angus v Emmott [2010] EWHC 154 (Ch), Richard Snowdon

QC (sitting as a deputy High Court judge) noted at [107]: “Authority on the exercise of discretion under section 50 is
sparse…” This followed the observation of Evans-Lombe J in Heyman & Ors v Dobson & Ors [2007]
EWHC 3503 (Ch) at [18]: “That section [50 AJA] or its predecessors has been the subject of very little authority to guide the
court as to how its provisions are to be applied.”
31 In Letterstedt, Lord Blackburn expressed concern (at p.886) that “there is very little to be found to guide us in

saying what are the cases requiring such a remedy- so little that their Lordships are compelled to have recourse to general
principles.” The passing of over a century of jurisprudence has done little to address Lord Blackburn’s concerns.
32 (1884) 9 App Cas 371 at 386, 387.

33 The overall test is referred to in inter alia Alkin v Raymond [2010] W.T.L.R. 1117 at [26]; Thomas Agnes

Carvel Foundation v Carvel [2007] EWHC 1314 (Ch) at [46]; Heyman v Dobson [2007] EWHC 3503
(Ch) at [20]; and Re Wrightson [1908] 1 Ch 789 at 803.

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 49. It is not possible to summarise the circumstances in which that underlying test will
be met. However, it is possible to divine from the case law, certain factors which
may be sufficient to the trigger the Court’s jurisdiction. A helpful summary of
such cases is provided by the authors of Lewin on Trusts (18th ed) at 13-54. Whilst
the examples given related specifically to trustees, the same principles apply by
analogy to personal representatives. Examples of successful applications to
remove include the following:

(1) Permanent residence outside of the UK

(2) Insolvency (whether an individual or corporation)
(3) Conflict of interest34
(4) General misconduct
(5) Non-cooperation
(6) Friction between trustees/personal representatives

50. The first two categories overlap with Section 36. However, if the requirements of
Section 36 are not satisfied or there is likely to be a substantial dispute, the Court’s
approval should be sought through Section 41. In practice, the last 4 categories
constitute the most common bases for removing a trustee or personal
representative.

Removal in the absence of misconduct

51. It is clear that there is no requirement to show misconduct on the part of a trustee
or personal representative in order justify their removal. This was recently put
beyond doubt by Briggs J in his decision in Jones v Firkin-Flood as follows at [284]:

“The submission that trustees should not be removed otherwise than for deliberate default
is in my judgment unsupported by any authority, and contrary to the principles emerging
virtually unanimously from all of them...”

52. The mere fact that, by reason of mutual hostility, the trustees are unable to work
together constructively in the interests of the trust is sufficient in principle.
Moreover, there is authority for the proposition that the Court is duty bound in
such cases to cases to order the removal of a trustee. In Re Consiglio’s Trusts35

34The fact that the trustee/executor is also a beneficiary is not, of itself, sufficient. Thus in Kershaw v
Micklethwaite [2010] EWHC 506 (Ch), Newey J considered (at [26]) that such conflicts were inevitable in
family settlements and did not necessitate removal.

(1973) 36 DLR (3d) 658. Re Consiglio was cited with approval in the recent decision of the High Court in
35

Angus v Emmott [2010] EWHC 154 (Ch) at [109].

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 the trustees, who were at enmity, were unable to agree on the management of the
trust. Kelly CA held (at page 660):

“... the Court is justified in interfering, and indeed required to interfere, when the
continued administration of the trust with due regard to the interests of the cestui que
trust has by virtue of the situation arising between the trustees has become impossible or
improbable.”

The burden to be satisfied the claimant

53. Whatever the ground relied upon by the claimant, it will be necessary to
demonstrate that the continued administration of the trust/estate will be
materially prejudiced. The Court’s unwillingness to remove on the basis of minor
breaches or of mere difficulties in the relations between trustees was expressed in
the recent decision of the New Zealand Court of Appeal in Kain v Hutton36 as
follows at [267]:

“Merely showing breaches of trust would not necessarily be sufficient to justify removal of
trustees. This would depend on the gravity and nature of the breaches and the particular
circumstances of the trust and the trustees, including the level of culpability of the
trustees... To allow trustees to be removed for relatively inconsequential mistakes would
be to usurp the settlor’s wishes in entrusting the assets to the trustees. In the same way,
mere incompatibility between trustees and beneficiaries is not enough... Any
incompatibility must be at such a level that the proper administration of the trust is
seriously adversely affected and it has become difficult for a trustee to act in the interests
of the beneficiary.”

54. Thus the wrongdoing required must either be of a serious nature in itself (for
example, demonstrating dishonesty on the part of the executor) or must be such
as to endanger the trust property. Simply failing to properly value the estate or to
keep beneficiaries properly informed as to the administration of the estate will
not, of itself, be sufficient37.

55. The burden is correspondingly higher where the only ground relied upon is
friction or hostility in the absence of any wrongdoing. In such a case it will be

36 [2007] N.Z.C.A. 199.

37 Kershaw v Mickelthwaite [2010] EWHC 506 (Ch).

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 necessary to point to serious prejudice to the continuing administration of the
trust or estate38.

56. Whatever conclusion may follow from a strict application of the legal principles,
the practice of the Courts has been to treat removal as a last resort in the absence
of an alternative means of enabling the administration to continue39. That
approach is reflected in the commentary in the Civil Court Practice (The Green
Book) to CPR 57.13 (in the context of applications under Section 50 AJA) as
follows40:

Applications for the replacement or substitution of personal representatives are intended,

in the main, to be made where there has been serious default in the administration of an
estate, or a complete breakdown in the relationship between personal representatives and
beneficiaries such as to obstruct the administration of the relevant estate. Application
under section 50 should not be made where there is a simple disagreement as to how to
proceed. In such cases, the proportionate approach, absent compromise, is to seek
directions from the court under Part 64. [emphasis added]

57. The kind of hostility between personal representatives necessary to trigger removal is
demonstrated by the recent decision of the High Court in Angus v Emmott41. In that
case a total impasse had been reached as to the basis on which the estate was to make
a claim against a third party on behalf of the estate. The Court ordered the
replacement of all the personal representatives on the basis that:

“a situation has been reached in which there is such a degree of animosity and distrust
between the executors that the due administration of Mr Steel’s estate is unlikely to be
achieved expeditiously in the interests of the beneficiaries unless some change is made.”

58. Where there is friction, not between individual trustees, but between beneficiaries and
trustees, the Court is unlikely to order removal in the absence of other factors unless
the breakdown in that relationship is liable to prejudice the administration of the
38 The position was set out in Letterstedt v Broers (1884) 9 App. Cas. 371 at 386-387 as follows: “Friction or
hostility between trustees and beneficiaries, or between a trustee and his co-trustees, is not of itself a reason for the removal of a
trustee. But where hostility is grounded on the mode in which the trust has been administered, where it is caused wholly or partially
by overcharges against the trust estate, or where it is likely to obstruct or hinder the due performance of the trustee's duties, the court
may come to the conclusion that it is necessary, for the welfare of the beneficiaries, that a trustee should be removed.”
39 In Isaac v Isaac [2005] EWHC 435 (Ch) at [66], Park J described the removal of a trustee as “a drastic step

for the court to take” and one that should only be taken “in a clear case”.
40 In a similar vein, the authors of Williams, Mortimer and Sunnocks (19th Ed) refer (at 60-14) to the “the

administration having come to a standstill” and it having “become impossible or difficult for the administration to be completed”
as the basis for removal.
41 [2010] EWHC 154 (Ch).

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 estate42. Finally, where factors are evenly balanced, the Court is entitled to consider
the fact that the testator or settlor has chosen the executor/trustee as a reason for
maintaining them in office43.

SECTION 5 – PRACTICE POINTS

59. It is important to bear in mind that, whatever the factor relied upon by claimant, the
circumstances must be of a fairly extreme nature before the Court will be prepared to
exercise its discretion. In many cases, there will be some degree of friction between
trustees and/or it will be possible to point to numerous examples of a trustee failing
to adhere to the standards set out in legal text-books. However, the removal of a
trustee or personal representative is not lightly undertaken and the guidance in the
Green Book (paragraph 55, above) reflects the nature of the burden to be overcome
by a claimant. Therefore, it is important to be realistic from the outset as to whether a
claim stands any prospect of success.

60. If it is considered appropriate to proceed with a claim, the following two matters
should always be considered.

61. First, it is sensible to provide the Court with alternative options for the replacement
of a trustee. Except in clear cases, a court is unlikely to simply replace one hostile
party with another. Therefore, thought should be given to the appointment of a
“neutral” third party44. With that in mind, the claimant should provide a number of
suitable alternative candidates who could take over the administration of the trust or
estate.

62. Second, where the cause of an impasse rests upon the resolution of a discrete issue(s)
such as whether a portion of a fund should be applied in a particular way, it is usually
sensible to apply for directions in the alternative: a court will be unlikely to remove a
trustee where directions will provide an effective remedy. Furthermore, in such cases
it may be that limiting an application to directions (rather than removal) would
provide for a more effective remedy for the claimant insofar as the substituted
trustee/executor may disagree with the claimant as to best way to progress the
administration. Finally, as the authors of Williams Mortimer and Sunnocks (19th ed) note

42 Kershaw v Micklethwaite [2010] EWHC 506 (Ch) at [11]. The view of the beneficiaries is, however, a
relevant factor to be considered: Green v Gaul [2005] EWHC 406 (Ch) at [200].
43 e.g. Kershaw v Mickelthwaite at [14] and Alkin v Raymond [2010] W.T.L.R. 1117.
44 In high value trusts/estates, the appointment of a professional fiduciary should be considered.

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 (at 60-14): “The removal of a representative tends directly or indirectly from his responsibilities and
may not therefore be a wise step to take.”
Court not restricted to pleaded case

63. When acting for a trustee or personal representative it should be noted that the Court
is entitled to remove a trustee or personal representative on grounds that are not
pleaded. Thus, it should not be thought that a trustee is safe merely because the
pleaded case against him is weak or unfocused. The Court is entitled to look into all
matters relating to the trust and form its own view. This is demonstrated by the
leading decision of the Privy Council in Letterstedt. In that case, the claimant
beneficiary made wide-ranging allegations of misconduct and breaches of trust. In the
event their Lordships were not satisfied as to existence of any bad faith. Instead the
decision to remove the remaining trustee was based on the friction which had
developed between the parties as a consequence of the way in which the trustee board
had remunerated itself.

Contentious Claims

64. It is often the case that, lying behind an application for removal, there is a long and
involved history of animosity between the parties. Moreover, many such claims
necessarily involve an assessment of the character of the person whom it is sought to
remove. As a consequence, it is tempting for litigants to seek to introduce a wide-
ranging factual inquiry into each other’s conduct as a way of undermining character
and credibility. It should be borne in mind, however, that such a course is likely to be
counterproductive. Such issues detract from the central issue which the Court must
determine. Further, unless backed up with cogent evidence, allegations of misconduct
are likely to undermine the accuser as much the accused. Therefore, allegations of
misconduct unrelated to the administration of the trust/estate, and which will require
lengthy cross-examination to make good, should be avoided.

65. Conversely, it is clear from the reported cases that the Courts are more interested in
the correspondence that has passed between the parties. Such correspondence often
relates directly the administration of the trust/estate and speaks for itself. This
enables the Court to reach its conclusions on evidence which is difficult to dispute.

66. The above propositions are demonstrated by the recent decision in Jones v Firkin-
Flood45 in which the parties were locked in conflict. Briggs J found that none of the
main witnesses were satisfactory, having been “consumed in passionate hatred of

45 [2008] EWHC 2417 (Ch).

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 their opponents”. His Lordship therefore placed significant weight on the
correspondence which was considered to speak for itself. In Heyman v Dobson46,
the deputy master (and subsequently the Judge) considered it appropriate to remove
the executor solely on the basis of correspondence, disregarding allegations of
misconduct.

67. It follows that parties can significantly help or hinder their case by the manner in
which they approach correspondence. If acting for the person whom it is sought to
remove, an aggressive (or uncooperative) approach clearly plays into the hands of the
claimant. Therefore great care should be taken in building up a body of
correspondence which makes one’s client look reasonable and objective whilst
seeking to elicit responses from the other side that are the opposite.

JAMES WEALE

3 Stone Buildings

T - 020 7242 4937

M – 07737500866

jweale@3sb.law.co.uk

11 November 2010

46 [2007] EWHC 3503 (Ch).

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