Removal of Executors: Legal Framework and Recent Case Law Developments

Under English law, an Executor of a will is the personal representative responsible for administering the deceased’s estate in accordance with the terms of the Will and their statutory duties. Executors owe fiduciary duties to beneficiaries and must act impartially, efficiently, and in the best interests of those entitled under the estate. Where Executors fail to comply with these obligations — or fail to act at all — the Courts may intervene and order their removal and replacement.

Although the courts place significant weight on the testator’s choice of Executor, the overriding concern is that the estate is properly and efficiently administered. An executor may therefore be removed where their continued involvement hinders or frustrates the administration of the estate.

Applications for the Removal of Executors

The appropriate application depends on the stage of the estate administration.

Where probate has not yet been granted, an application may be made under Section 116 of the Senior Courts Act 1981, allowing the court to “pass over” an executor entitled to a Grant of Probate or letters of administration where special circumstances justify doing so.

Once a Grant of Probate has been issued, the principal statutory power is found in Section 50 of the Administration of Justice Act 1985. This provision enables the High Court to remove an existing Executor and appoint a substitute personal representative on the application of a beneficiary or personal representative.

What Does the Court Consider?

The principles governing the removal of executors have been clarified through case law. In Harris v Earwicker [2015] EWHC 1915 (Ch), Chief Master Marsh set out the key considerations, including:

• It is not necessary to establish wrongdoing or fault; the guiding principle is whether the estate is being properly administered.
• Where wrongdoing is serious and endangers the estate, removal is likely.
• Minor criticism will not usually justify removal if it does not affect administration.
• The testator’s wishes and the views of beneficiaries are relevant but not determinative.
• A breakdown in relations will only justify removal if it renders administration difficult or impossible.
• The cost of replacement, particularly where professional executors are proposed, is a material consideration.

This approach was reaffirmed in Schumacher v Clarke [2019] EWHC 1031 (Ch).

Overall, the Court’s discretion under Section 50 is broad and forward-looking, focusing on whether continuation of the Executor would prevent the estate from being properly administered.

Recent Case Law Developments

In Long v Rodman & Ors [2019] EWHC 753 (Ch), the court confirmed that unresolved allegations and a serious breakdown in relationships may render an Executor’s position “untenable”, even where allegations have not been fully adjudicated.

More recently, in Fernandez v Fernandez [2025] EWHC 2373 (Ch), the High Court removed an executor where hostility and lack of communication between siblings made administration “unworkable”. Crucially, the court did not require proof of dishonesty. A professional Executor was appointed, and the removed Executor faced a significant adverse costs order, with limits placed on any indemnity from estate funds.

Practical Considerations and Procedure

Applications to remove executors are typically brought under Part 8 of the Civil Procedure Rules, supported by written witness evidence. Live evidence and cross-examination are uncommon.

The court will expect clear evidence of delay, conflict of interest, incapacity, mismanagement, or breakdown in relations that materially affects administration. Failed applications can result in adverse costs orders, making early legal advice essential.

As noted in Schumacher v Clarke:

The power of the court is not dependent on making adverse findings of fact… it will often suffice… that a good arguable case has been made.

Effect of Removal

Once removed, an executor immediately ceases to have authority. Remaining executors or a court-appointed independent administrator will assume responsibility for completing the estate administration.

If you are concerned about the conduct of an executor — or are facing an application for removal — early specialist advice is crucial.

Our Contentious Trusts and Probate Team would be pleased to assist

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.