Grant of administration of an estate pending challenge to a will: Section 117(1) of the Senior Courts Act 1981
19 Mar 2021
The Claimants were siblings and disputed the validity of a will, contending that their mother died intestate. The Claimants’ brother, the Defendant, alleged that pursuant to a will executed in 2008, he became his mother’s executor upon her death in 2020. Under this will, the Defendant stood to inherit the bulk of his mother's estate, including a property valued in the region of £1 million.
Against that backdrop, the Defendant brought an application within the proceedings seeking permission to re-mortgage the property with a different lender to avoid re-possession. The court’s permission was necessary as the Defendant had previously given undertakings not to attempt to or actually diminish the value of the property, by, amongst other things raising or attempting to raise money on it.
By way of a cross-application, the Claimants alleged that as the Defendant was not a ‘fit and proper person’ to administer the estate, the court should exercise its jurisdiction under s. 117(1) of the Senior Courts Act 1981 to replace him with a more responsible administrator pending determination of the will’s validity. Section 117(1) provides:
"Where any legal proceedings concerning the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, are pending, the High Court may grant administration of the estate of the deceased person in question to an administrator pending suit, who shall, subject to subsection (2), have all the rights, duties and powers of a general administrator."
In his judgment, Peter Knox Q.C (sitting as Deputy Judge of the High Court) gave a succinct overview of the events both before and immediately after the deceased’s death which, for the most part, showed a want of honesty from the Defendant. In particular, it was noted that the Defendant had previously contended on the death of his father in 2017 that there existed a will under which his father left him the entirety of his property. When this was challenged in proceedings by his stepmother, the Defendant dropped his claim. The Judge remarked that ‘on the face of it, this would appear to be because the will was obviously a forgery.’ Moreover, the Judge considered there to be reasonable grounds for believing that the Defendant had obtained the warning off of the Claimants’ caveat by falsely telling the Probate Registry on affidavit that he had served a warning off notice on the Claimants when in fact he had not. In total, the Judge considered the Defendant to be an ‘inappropriate person’ for no less than 10 reasons. Not only was a solicitor (chosen by the Claimants) appointed to administer the estate pending determination of the claim, but the Defendant’s application to re-mortgage the property was conclusively dismissed.
Not every dispute concerning the conduct of executors will be as clear-cut as the above facts. Nevertheless, whether an application is made pursuant to the Senior Courts Act 1981 or section 50 of the Administration of Justice Act 1985, removal is reserved for the more serious cases.
As s.117(1) of the Senior Courts Act 1981 sets out no prescriptive test to be applied by the court when exercising its discretion, it is unsurprising that the Judge in this case sought to cloak the relevant statute with the same principles as have been applied under s.50 of the Administration of Justice Act 1985, comprehensively set out in Schumacher v. Clarke  EWHC 1031 (and also Long v Rodman and others  EWHC 753 (Ch)). The general principle guiding the court in the exercise of its jurisdiction is the welfare of the beneficiaries and the competent administration of the estate in their favour. As this case demonstrates, the court will, without hesitation, remove a person who has endangered the estate or shown a want of honesty.
Whilst it is not necessary to establish wrongdoing to obtain removal, an applicant needs to demonstrate something more than a personality clash or a trivial complaint. The hostility ought to be grounded in such a way to demonstrate that the continued tenure of the administrator or executor is untenable.