Summary

On the application of a beneficiary under an agreement to maintain mutual wills, the court exercised its discretion under the Judicial Trustees Act 1896 s.1 to remove a personal representative of the estate of the deceased and replace her with a neutral, independent person, where she had failed to execute a trust properly for the welfare of the beneficiary.

Facts

The applicant foundation (F) applied for a summary order replacing the first respondent (P) as sole personal representative of the estate of the deceased (C) with a neutral, independent person, and setting aside orders obtained by P for the payment to her of over £8 million out of C's estate. C and her husband had executed mirror-image wills leaving their estate on trust for each other with the remainder on trust for F, which was a not-for-profit corporation incorporated in New York. They also executed an agreement that they would not alter their wills. C's husband pre-deceased her and she made a new will appointing P her sole executrix and bequeathing her estate to the second respondent foundation (S). C and P had subsequently moved to London. When C died, P obtained probate. F then instituted proceedings in the United States to enforce the reciprocal will agreement, which was found to be valid and enforceable and accordingly F was entitled to receive the assets of C's estate. However, P, in her personal capacity, subsequently issued a claim in the United Kingdom against herself as executor of C's estate, claiming various expenses. S was joined as defendant in place of P, which consented to the claim, and the court ordered that a sum in excess of £8 million be paid from C's estate. Thereafter, P applied for the UK order to be "domesticated" or registered in the US courts. She had given no notice to F of the UK proceedings or the petition to domesticate the order. A writ of execution was issued to enforce the UK order, and F obtained temporary orders restraining P from enforcing it. F applied for P's replacement as representative of C's estate under the Administration of Justice Act 1985 s.50 or alternatively the Judicial Trustees Act 1896 s.1, and for the setting aside of the UK order under CPR r.40.9. F contended that (1) it was a person who "under the will of the deceased" was beneficially interested in the estate and could apply under s.50 of the 1985 Act because its entitlement derived from C's previous will, which she had agreed not to revoke; (2) the court ought to exercise its discretion to remove a trustee where P's every act had been calculated to promote her own personal interests and to prejudice those of F, and she was in a position of irreconcilable conflict with F, as principal beneficiary of C's estate.

Held

A person who claimed under the doctrine of mutual wills was not a person beneficially interested in the estate "under the will of the deceased". It followed that no valid application could be made by such a person under s.50 of the 1985 Act. However, the survivor of two persons who made mutual wills was treated as a trustee and the trust bound those who claimed under him. Accordingly, the survivor and executors were trustees in the usual sense of that word. A person entitled to enforce the trust thus imposed by law was a beneficiary, and therefore entitled to apply under s.1 of the 1896 Act. F was therefore entitled to make its application under that provision. (2) Similar principles applied to the removal of a trustee and a personal representative: the overriding consideration was whether the trusts were being properly executed and the main guide was the welfare of the beneficiaries, Letterstedt v Broers (1883-84) LR 9 App Cas 371 PC (Cape) applied. In the circumstances, there was intense hostility between P and F, and the evidence led to a conclusion that P did not understand her responsibilities and was not willing to learn them. Therefore, P was ordered to be removed as personal representative and replaced by a solicitor who had consented, and been certified as fit, to act. (3) F was entitled to make the application under CPR r.40.9 as it was a person who was directly affected by the order, because if it stood it would reduce the value of C's estate. The court exercised its discretion to set aside the order where no notice of the UK proceedings or order had been given to F, there had been no decision on the merits of the claim, and there was a prima facie case that P was influential in the decision making of S.

Applications granted