The recent Chancery Appeal decision in Fernandez v Fernandez and others [2025] EWCA 2373 (Ch) is a striking reminder that the operation of the court’s jurisdiction to remove personal representatives and trustees in England and Wales is very flexible. So flexible, in fact, that the best interests of the beneficiaries can justify the removal of a personal representative without any mismanagement or misconduct on the part of the personal representative. 

This article considers some of the substantive and procedural aspects of the court’s exercise of s50 of the Administration of Justice Act 1985 (the AoJA 1985) and s.41 of the Trustee Act 1925 (the TA 1925), recently substantively reaffirmed by Fernandez v Fernandez. 

Background

Jean and Alexander Fernandez died in 2010 and 2013 respectively, apparently intestate and leaving five living adult children. Two of their children, Leessa and Nick, took out letters of administration to Jean’s estate in 2013. 

Jean’s estate included a property in London, which was occupied by Jean and Alexander’s other daughter, Vanessa. Jean and Alexander were also settlors and trustees of a discretionary trust for the benefit of their children (the 2008 Trust). 

Julian (the appellant in this case) subsequently found two homemade wills from Jean and Alexander in 2015 and 2018, respectively, both dated 1 October 1996 (the 1996 Wills). Each 1996 Will appointed Julian and the other spouse as executors, gave pecuniary legacies and left the residue to the other spouse. Julian then, as Alexander’s executor, appointed himself and a friend of his as trustees of the 2008 Trust.

As such, in 2018 Julian issued a CPR Part 7 claim seeking to revoke the letters of administration given to Leessa and Nick and to obtain a grant of probate to himself of Jean’s 1996 Will. Leessa and Nick defended the claim, putting Julian to proof on the validity of Jean’s 1996 Will and issuing a counterclaim, seeking, inter alia, that Julian was removed:

1. as executor of the 1996 Wills (under s.50 of the AoJA 1985); and 
2. also as a trustee the 2008 Trust (under s.41 of the TA 1925)). 

Leessa and Nick subsequently issued an application for summary judgment on their counterclaim, which was adjourned pending the determination of the validity of Jean’s 1996 Will as a preliminary issue. The preliminary issue was tried in 2019 and Jean’s 1996 Will was held to be valid. As such, the letters of administration were revoked and Julian obtained a full grant of probate of Jean’s estate. He was now executor of both parents’ estates. After a stay of several years of the counterclaim, directions were eventually given in 2023, leading to a four-day trial. Again, Leessa and Nick made an application in March 2024 for a summary determination of the removal application, which was heard by DJ Wales during a one-day hearing in September 2024. 

DJ Wales ordered that Julian be removed as executor of the 1996 Wills and removed him, and anyone appointed by him, as trustee of the 2008 Trust, both positions to be filled by independent professionals. DJ Wales also disapplied Julian’s right of indemnity from the estate in relation to the costs of the litigation and ordered him to pay the other parties’ costs on the indemnity basis. 

Test for removal 

Julian appealed the decision of DJ Wales removing him from office, on numerous grounds, including that DJ Wales had misapplied the legal principles governing the removal of an executor under s.50 AJA 1985 and the removal of a trustee under s.41 of the TA 1925. Julian claimed that DJ Wales had made an error of law by removing him where there was no substantial evidence to show that he had acted in breach of fiduciary duty and that there was no mismanagement of the estate or ongoing conflict that would impede the administration of the estate or harm the interest of the beneficiaries. In addition, his position in relation to his trusteeship was that removal of a discretionary trustee requires specific findings of misconduct or breach of trust, neither of which were alleged or found. 

HHJ Matthews on appeal dismissed all grounds of appeal and upheld DJ Wales’ decision and reasoning, stating that Julian’s formulation of the test for removal did not reflect the settled law. Despite the separate statutory jurisdictions, HHJ Matthews confirmed that the same considerations will apply to the removal of a trustee as they do a personal representative. 

The test for removal of a personal representative is set out in Harris v Earwicker [2015] EWHC 1915 (Ch) and later repeated by the same Chief Master Marsh in Long v Rodman [2019] EWHC 753 (Ch), and Schumacher v Clarke [2019] EWHC 1031 (Ch). The test can be summarised as follows: 

“It is unnecessary for the court to find wrongdoing or fault on the part of the personal representatives. The guiding principle is whether the administration of the estate is being carried out properly. Put another way, when looking at the welfare of the beneficiaries, is it in their best interests to replace one or more of the personal representatives?”

The court’s discretion is therefore necessarily wide. It can take into account proper criticism of the personal representatives but only to the extent that it affects the administration of the estate. In reality, evidence of fault or wrongdoing that is material enough to endanger the estate is very likely to result in the exercise of the court’s power to remove; however, as discussed below, the court does not need to resolve any issues of fact to reach that conclusion. The wishes of the beneficiaries may be relevant, but the court will not simply exercise its discretion on request by the beneficiaries. 

In the absence of any significant wrongdoing or fault, the court will look at whether it has become impossible or difficult for the personal representatives to complete the administration of the estate. This is a forward-looking determination, informed by the relevant conduct and events of the past. 

In Fernandez v Fernandez it was clear that there had been a protracted and extreme breakdown in relations between Julian as the executor and the remaining children as beneficiaries of the estates, exemplified by years of disputes. Leessa and Nick’s arguments for Julian’s removal as executor included allegations that he had provided materially inaccurate and inconsistent accounts of Alexander’s’ estate, he had conflicts of interest (including that he intended to retain the London flat for Vanessa to live in rather than administer it expeditiously), received unauthorised sums out of the estate, misapplied assets for his own benefit, failed to provide updates in relation to the development of the estate’s property and was hostile, secretive and unfair in his dealings with the other beneficiaries. 

At first instance DJ Wales considered that, inter alia, the personal hostility was placing significant hurdles in the way of finalising the administration of the estates and had a direct impact on that administration. The reasons for that finding included: Julian’s potential conflicts of interest (the test being that a fiduciary must not, without authorisation, put himself in a position of potential conflict, rather than requiring proof of an actual conflict) in relation to retaining the London flat and Julian’s position as trustee and beneficiary of the 2008 Trust and the worrying extensive delay of more than ten years in relation to the administration of the estates. 

DJ Wales concluded that it was in the interests of the beneficiaries as a whole that the conclusion of the administration be completed by an independent professional. DJ Wales did not require any proof of the alleged misconduct or dishonesty to reach that conclusion. This decision was made even with the countervailing considerations that the administration of the estates was almost completed and the removal and replacement of the personal representatives would create a new and significant layer of expense which would diminish the value of the net estate to the detriment of all beneficiaries – the benefits of removal and replacement to the interests of the beneficiaries as a whole justified this expense. 

Procedure 

Applications to remove personal representatives will usually be made via CPR Part 8 proceedings (see further paragraph 13.1(2) of the CPR PD 57 and Long v Rodman [2019] EWHC 753 (Ch) and Schumacher v Clarke [2019] EWHC 1031 (Ch)), where the application is set out in written evidence (rather than live evidence) and heard without a trial, removing the opportunity to cross examine witnesses. 

As set out in Schumacher v Clarke [2019] EWHC 1031 (Ch) at [28]: “The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised”.

The procedural history of Fernandez v Fernandez highlights the potential perceived unfairness of this jurisdiction, whereby the court can remove a fiduciary office holder without any determination of disputed factual issues which could be relevant to the removal. Leessa and Nick’s arguments for removal were initially raised in a counterclaim to Julian’s original Part 7 claim in 2018. Directions were subsequently given in 2023 to hear the disputed factual issues raised by the counterclaim in a four-day hearing. The summary application for removal made by Leessa and Nick in 2018 therefore overrode those directions and resulted in the removal of Julian as executor and trustee without any trial of those issues, as previously anticipated. 

Fernandez v Fernandez is therefore an important reminder that whilst s.50 AoJA 1985 is not a summary jurisdiction, the court’s statutory power to remove personal representatives will be used pragmatically and readily by the court, given the potential damage that any delay could cause to the administration of the estate. This removal jurisdiction is not akin to ordinary inter partes litigation which seeks to prove facts against the other party – a surprising facet of the operation of the provisions given the gravity of the consequences for the removed fiduciary and the estate / trust which result from an order for removal.

A case for removal should therefore not seek to prove wrongdoing and/or hostility of the personal representative; rather, it should take that analysis one step further and demonstrate how the administration of the estate is being affected, and the interests of the beneficiaries impacted, by the existence of disputes in relation to such actions, whether they can be proved or not.