Analysis
The deceased had died suddenly without making a will, with his wife, the first defendant, being appointed as the administratrix of his estate. Disagreement arose in relation to the administration of the estate, and the plaintiffs, two of the deceased’s daughters, issued proceedings pursuant to Art 35 of the Wills and Administration Proceedings (Northern Ireland) Order 1994, seeking removal of the existing administratrix and the appointment of a neutral professional person as administrator.
Held
Removing the first defendant as administratrix and appointing a neutral professional as administrator, that it was clear that the first defendant did not understand and had not discharged her duties as a personal representative and had not properly protected the welfare of the other beneficiaries.
The statutory provision was in broad terms, leaving the court discretion as to how a decision was to be made. In considering the exercise of that discretion, citing Lewison J in Thomas and Agnes Carvill Foundation v Carvill and Another [2007] WTLR 1297; (who was himself citing Lord Blackburn in Letterstedt v Broers (1884) 9 App Cas 371):
i. Similar principles are applicable in the case of removal of a personal representative as apply to the removal of a trustee, with the overriding consideration being whether the trust is being properly executed.
ii. It is not every mistake or neglect of duty or inaccuracy of conduct of trustees which will induce a court to remove a trustee. The acts or omissions must be such as to endanger the trust’s property or to show a want of honesty or a want of proper capacity to execute the duties or a want of reasonable fidelity.
iii. If it appears clear that the continuance of the trustee would be detrimental to the execution of the trust, even if for no other reason than that 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 to give the trustee a benefit or otherwise the court might think it would be proper to remove them.
A pronounced delay on the part of the personal representative in the administration of the estate is a legitimate factor to take into account and might be viewed as an example of a want of proper capacity to execute the duties. Further, a misunderstanding of the role of a personal representative, so that the estate is not being distributed according to law but according to some concept of fairness quite different from the law on the part of the personal representative, is a ground for removal of the personal representative.
JUDGMENT DEENY J: [1] The court has before it an application brought by originating summons of 15 March 2011 and it was brought by Mrs Deirdre Muckian and Mrs Mary McCann and they are the daughters of the late Michael Hoey deceased. It is brought on their behalf by Fitzsimmons Mallon who have instructed Mr …Continue reading "Muckian & anr v Hoey & ors [2014] NICh 11"