Analysis
Everard Goodman (the deceased) died on 17 April 2011 leaving a will dated 15 December 2010 (the will) naming his sons, the claimants (C), his daughter, the second defendant (D2), and his widow, the first defendant (D1), as executors. However, relationships between the parties were very poor and, on 16 August 2012, D1, a beneficiary under the will as well as one of the executors named in it, issued an application for an independent professional to take over the administration of the deceased’s estate under s50 of the Administration of Justice Act 1985 (the 1985 Act). C argued that only s116 of the Senior Courts Act 1981 applies to an estate where there has not been a grant of probate, so that s50 applies only after a grant. Master Bragge heard the matter and found that s50 could be invoked without probate having been granted. C appealed.
Held:
Appeal dismissed [26]. Neither Thomas and Agnes Carvel Foundation v Carvel [2007] WTLR 1297 nor Perotti v Watson & ors [2001] EWCA Civ 116 was binding authority in this case. The former had concerned a beneficiary claiming under a mutual will and while, as Master Bragge observed below the statement of Sir Martin Nourse in the latter case that ‘if an executor named in a will has not proved it, there is nothing from which to remove him’ raised a difficult point, on balance, as the Master concluded, that comment was obiter. The ambit of s50 could be considered afresh [23, 24].
An application under s50 could be made by a ‘personal representative’ or a ‘beneficiary of the estate’. A ‘beneficiary’ for this purpose was ‘a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate’. Read naturally, the section would apply to a named executor who had not proved. It conferred a power to replace or remove a ‘personal representative’, which encompassed both an executor and an administrator. An administrator derived title from his appointment as such by the court; there could therefore be no question of his being replaced or removed in advance of the grant of letters of administration. In contrast, an executor derived title from the will, and the property of the deceased vested in him from the moment of the testator’s death. The grant of probate was merely the ‘legal optics’ through which the will was looked and the definition of ‘will’ in s50 was not limited to a document of which probate had already been granted (see s56 of the 1985 Act). There was a considerable overlap between s116 of the Senior Courts Act and s50 of the 1985 Act if the latter was construed as covering executors who have not proved. However, it could not be inferred that Parliament did not intend such an overlap [15].
JUDGMENT MR JUSTICE NEWEY: [1] The question raised by this appeal is whether s50 of the Administration of Justice Act 1985, which contains a power to replace or remove personal representatives, applies in relation to a person named as an executor in a will but who has not been granted probate. [2] The case concerns …Continue reading "Re Goodman (dec’d) [2013] EWHC 758 (Ch)"