Michael Paul Goodman and Another (Appellants/Claimants) v Mina Goodman and Another (Respondents/Defendants)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] EWHC 758 (Ch) |
| Docket Number | Case No: CH/2013/0033 |
| Court | Chancery Division |
| Date | 18 January 2013 |
[2013] EWHC 758 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE ESTATE OF EVERARD NICHOLAS GOODMAN DECEASED
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Newey
Case No: CH/2013/0033
MR R TAGER QC appeared on behalf of the Claimants
MR T MOWSCHENSON QC appeared on behalf of the First Defendant
MR R DEW appeared on behalf of the Second Defendant
The question raised by this appeal is whether section 50 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.
The case concerns the estate of Mr Everard Goodman, who died on 17 April 2011. Mr Goodman left a will dated 15 December 2010 in which he named the parties to the present proceedings as his executors. The claimants are Mr Goodman's sons, and the second defendant is his daughter. The first defendant is Mr Goodman's widow.
Regrettably, relations between Mr Goodman's sons, on the one hand, and his widow and daughter, on the other, are very poor. Disagreements between them led to the issue of the proceedings that are before me on 6 March 2012. On 16 August 2012, the first defendant, who is a beneficiary under Mr Goodman's will as well as one of the executors named in it, issued an application in those proceedings for an independent professional to take over the administration of Mr Goodman's estate. The witness statement in support of the application explained that the application was made under section 50 of the Administration of Justice Act 1985.
One of the objections that the claimants raised in response to the first defendant's application was that section 50 of the 1985 Act is inapplicable in the case of a person who was named as an executor but who has not been granted probate. According to the claimants, an application in respect of such a person must be made pursuant to section 116 of the Senior Courts Act 1981 rather than section 50.
Master Bragge heard oral submissions on the point raised by the claimants at a hearing on 20 August 2012, and further written submissions were lodged subsequently. Judgment was formally handed down on 9 January 2013. Rejecting the submissions advanced on behalf of the claimants, Master Bragge concluded that section 50 can be invoked without probate having been granted. The claimants appeal from that decision.
Section 50 of the 1985 Act confers on the Court a power to replace personal representatives or simply to terminate their appointments. Section 50(1) provides as follows:
"Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—
(a) appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or
(b) if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons."
Subsection (2) deals with the status of someone appointed as a "substituted personal representative". It states:
"Where the court appoints a person to act as a substituted personal representative of a deceased person, then—
(a) if that person is appointed to act with an executor or executors the appointment shall (except for the purpose of including him in any chain of representation) constitute him executor of the deceased as from the date of the appointment; and
(b) in any other case the appointment shall constitute that person administrator of the deceased's estate as from the date of the appointment."
As is apparent from section 50(1), an application under the section can be made by a "personal representative" or a "beneficiary of the estate". Subsection (4) explains that a "beneficiary" for this purpose is "a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate". By virtue of section 56, "will" includes "any testamentary document of which probate may be granted".
The origins of section 50 are not entirely clear. I was referred to two reports that had been published earlier in the 1980s, but neither of them obviously accounts for the introduction of section 50. The first of the reports dates from 1980 and is of a "Review Body on the Chancery Division of the High Court". This explained, in paragraph 114, that witnesses had spoken of the need for a "simple summary procedure enabling a master, on being satisfied by affidavit that personal representatives have been dilatory in winding-up an estate or providing accounts, to make an order for appropriate steps to be taken by the personal representatives by a specified date or dates without the necessity of a full administration or the taking of accounts". The Review Body recommended that "the rules should be amended to authorise application by motion in urgent cases". Nothing was said about any need for new primary legislation.
The second report, of the Law Reform Committee, was published in 1982 and dealt with the powers and duties of trustees. Part VII of the report noted that "the dilatory personal representative" was a serious problem, but no change in the law was suggested. The Law Reform Committee said this in paragraph 7.14:
"Before considering changes in the law we think it would be helpful to set out in outline the remedies which are available at the moment to a beneficiary who is dissatisfied with the actions of the personal representative. The time honoured remedy of an administration action, in which the Court, in effect, takes over the whole administration of the estate is still available; it is, however, an extremely clumsy, costly and time consuming procedure and in practice it is only in wholly exceptional cases that its use can be recommended. In practical terms, in the kind of case we are considering, the beneficiary's main remedy is to apply to the court for the appointment of a judicial trustee under section 1(1) of the Judicial Trustees Act 1896. The object of this statute is to provide a middle course in cases where the administration of the estate by the ordinary trustees has broken down and it is not desired to put the estate to the expense of a full administration. We are not aware of any case where this remedy has been adopted and found unsatisfactory".
These views notwithstanding, by 1985 it was evidently thought desirable to introduce an alternative to the Judicial Trustees Act 1896. Lewison J noted in Thomas and Agnes Carvel Foundation v Carvel [2007] EWHC 1314 (Ch), [2008] Ch 395 that "the practice and procedure under the 1896 Act was … considered to be cumbersome and over-formal" (see paragraph 18).
The Judicial Trustees Act 1896 remains in force. Until the Act was passed, the Court had no power to remove someone who had been granted probate (see In re Ratcliff [1898] 2 Ch 352, at 356). The position changed with the passing of the Act, section 1(1) of which is in these terms:
"Where application is made to the court by or on behalf of the person creating or intending to create a trust, or by or on behalf of a trustee or beneficiary, the court may, in its discretion, appoint a person (in this Act called a judicial trustee) to be a trustee of that trust, either jointly with any other person or as sole trustee, and, if sufficient cause is shown, in place of all or any existing trustees".
Subsection (2) extends the Act to personal representatives. It provides:
"The administration of the property of a deceased person, whether a testator or intestate, shall be a trust, and the executor or administrator a trustee, within the meaning of this Act".
The provision which the claimants maintain that the defendants ought to have invoked in the present case is section 116 of the Senior Courts Act 1981. This provision, which is headed "Power of court to pass over claims to grant", states as follows:
"(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit".
As Current Law Statutes Annotated noted, section 116 "reduces some rather detailed drafting in s. 162 [of the Supreme Court of Judicature (Consolidation) Act 1925] concerning settled land and insolvency (as well as special circumstances) to a widely drafted power to pass over prior claims to grant 'by reason of any special circumstances'". Section 162 of...
To continue reading
Request your trial
-
Shepherd & Company Solicitors v Mr Peter Ian Brealey
...a formal act of renunciation, effected in writing, s/he remains an executor. 79 I agree with Mr Meehan's submission. In Goodman v Goodman [2014] Ch 186, Newey J said, at paragraph 15a, “An executor derives title from the will, and the property of the deceased vests in him from the moment o......
-
Karen Pegler v Timothy Bruce McDonald
...has yet been obtained. It ceases to apply once a grant has been obtained: A-B v Dobbs [2010] WTLR 931, [8]. In Goodman v Goodman [2014] 1 Ch 186, Newey J (as he then was) held that section 50 of the Administration of Justice Act 1985 also applied to the pre-grant situation, as well as to th......
-
Lucy Jane McCallum-Toppin v Alistair Bruce McCallum-Toppin
...had only a slight opportunity to carry out research in response to my question, was unable to find any either. He did refer me to Goodman v Goodman [2014] Ch 186, a decision of Newey J (as he then was) but that does not deal with this point at all. 12 However, in principle I consider that t......
-
Kings Court Trust Ltd and Others v Lancashire Cleaning Services Ltd
...or seeking registration of the shares in their name. He relies upon observations of Mr Justice Newey in the case of Re Goodman [2013] EWHC 758 (Ch) reported at [2014] Ch 186. There the judge held that the term 'personal representative' in the Administration of Justice Act 1985 encompassed ......
-
Table of Cases
...Goodman v Goodman [2006] EWHC 1757 (Ch), [2006] WTLR 1807, [2006] All ER (D) 193 (Jul) 123 Goodman and Another v Goodman and Another [2013] EWHC 758 (Ch), [2014] Ch 186, [2013] 3 WLR 1551, [2013] 3 All ER 490, [2013] WTLR 1181 199 Goodwin v Avison and Others [2021] EWHC 2356 (Ch), [2021] 8 ......
-
Claims Against, and Removal of, Personal Representatives
...of those persons. A personal representative may be removed before probate is granted (see Goodman and Another v Goodman and Another [2013] EWHC 758 (Ch)), but if the personal representative has completed the administration of the estate save for the residue, he/she holds the residue as a tr......