Charlotte Black is a Barrister with Wilberforce
Chambers, Richard Sims is a Legacy Officer at Help the Aged
The beneficiaries of a deceased’s estate rely on an executor
nominated in a will, first to take probate and second, to
administer the estate efficiently and in accordance with his duties
under s.25 Administration of Estates Act 1925 (AEA).
Moreover, without action either on the part of the beneficiaries or
the nominated executor himself, an executor will generally remain
entitled to a grant of probate and to administer the estate in
priority to anyone else (Non-Contentious Probate Rules 1987 (NCPR)
In practice, however, beneficiaries sometimes find themselves
faced with an executor who, far from fulfilling his duties, turns
out to be dilatory, uncommunicative, incompetent or simply wholly
unsuitable for the job in hand. Where there is evidence of
misfeasance or maladministration, proceedings against an executor
for breach of duty or devastavit, for example, can obviously be
considered. However, often beneficiaries are simply concerned to
obtain information from an uncommunicative executor, or for the
administration to be carried out or continued by someone else.
What follows, therefore, is a brief overview of the main courses
of action that can be considered by beneficiaries, especially
residuary beneficiaries, in order to address these concerns and, in
particular, to entitle someone other than a troublesome executor to
administer the estate.
Many of the points raised in this article will apply by analogy
to all those entitled to administer the deceased’s estate, whether
as administrators or executors. However, for ease of reference, we
refer only to executors. It should also be noted that in many cases
different rules and considerations will apply where the deceased
died domiciled outside England and Wales.
It is not always clear pre-grant that an executor nominated in a
will is likely to be problematic, particularly where that executor
is a professional. However, where trouble arises or is anticipated,
the following routes can be considered.
Often a sensible first step in preventing a grant of probate to
an unsuitable executor is to enter a caveat, since it generally
precludes a grant being made in respect of an estate (except grants
ad colligenda bona or pendente lite). Indeed in some
cases, such as citations, a caveat is a necessary precursor.
The procedure is mostly contained in NCPR r.44. Unless warned,
caveats generally remain in force for six months, unless the
registrar orders otherwise, although they can be extended for
subsequent periods (see NCPR r.44(3)).
Renunciation is only an option where a nominated executor is
cooperative, since he cannot be compelled to renounce. It is also
only possible where an executor has not already intermeddled with
Where an executor is willing and able, however, for example
where he simply wants nothing to do with the administration, he may
renounce, effectively abandoning his right to a grant of probate
(see AEA s.5(iii)). This allows the next entitled person (under
NCPR r.20 – generally a residuary legatee), to take a grant.
The renunciation must be in writing, and whilst this can be done
any time after a testator’s death, a renunciation generally
accompanies an application for a grant by the person next entitled.
Once made, a renunciation can be retracted but only with the leave
of a district judge or registrar, and only in exceptional
circumstances where probate has already been granted to someone
else (NCPR r.37(3)).
Where renunciation is not an option, citations are a useful
method of attempting to spur a delaying executor into action, or to
entitle another to administer the estate. There are two main types
to consider in this context: a citation to accept or refuse a
grant, and a citation to take a grant.
First, where an executor has not intermeddled and cannot be
persuaded to renounce (either because he refuses or has not been
traced), but equally is taking no steps to obtain a grant of
probate, he can be cited by the person next entitled to a grant to
accept or refuse probate (NCPR r.47(1)). If the executor fails to
appear or apply for a grant, the citor is entitled to apply for a
grant to himself (NCPR r.47(5)(a); 47(7)(a)).
Second, in the slightly different situation where an executor
has intermeddled in the estate (so that renunciation is
impossible), but has not taken a grant within six months of death
he may be cited by any person interested in the estate to show
cause why he should not be ordered to take a grant (NCPR r.47(3)).
If the executor fails to appear or apply for a grant, the citor may
apply for an order requiring the executor to take a grant (if such
an order is made and breached, the executor will be liable for
committal), or for a grant to himself or someone else (NCPR
Care should be taken in issuing a citation where it is feared
that the cited executor is, in fact, unsuitable to administer the
estate, but where there is a good chance that he will respond to
the citation by actually applying for a grant of probate. In such
cases, an alternative course of action could be an application
under s.116 Supreme Court Act 1981 to pass over an
executor (see below). It is also sometimes possible to use the
s.116 procedure rather than a citation when an executor cannot be
traced, particularly if the estate is small.
The procedure for issuing citations is contained in NCPR
r.46-50. Importantly, before a citation is issued, a caveat must be
entered in respect of the estate (r.46(3)).
Under s.116 of the Supreme Court Act 1981 the High
Court may appoint someone other than a nominated executor (or any
other entitled person) to administer the estate if it considers
that by reason of any ‘special circumstance’ it would be ‘necessary
or expedient’ to do so. Many practitioners will think of this in
relation to passing over disputing co-executors or perhaps where
there is a conflict of interest, but it is also useful where the
executor is thought to be of bad character, or where he is unlikely
to administer the estate properly (see e.g. Re Biggs
Estate  1 All ER 358)
The application is generally made without notice to the District
Judge or registrar, with a supporting affidavit, (NCPR r.52), which
must disclose all material facts to the court, otherwise the grant
could be revoked (Shephard v Wheeler (2000) Times, 15
Often, it is only once an executor has taken probate
and the administration of the estate has, or should have, commenced
that problems occur
Grant ad colligenda bona
If the dispute looks set to rumble on for some time, it is
advisable, especially in these days of economic uncertainty and
plummeting house prices, to consider an application for a grant
ad colligenda bona defuncti. This gives a limited grant of
administration enabling the estate to be administered in the
meantime for the purpose of preserving its assets. It is often
possible for both executors and beneficiaries to agree to this
emergency measure, but it is not always an appropriate course of
action, and can be an expensive and time-consuming process.
Moreover, it should only be used where there is a genuine risk to
the estate, and not merely to ensure a tactical advantage – see
Ghafoor v Cliff  2 All ER 1079. On the other hand, the
judgment in Sifri v Clough & Willis  WTLR 1453
was critical of the professional executors for failing to take this
precaution. The efficacy of such an application must really be
determined in the context of a particular estate.
Application for the grant must include a supporting affidavit in
which the grounds for the application must be stated (NCPR r. 52).
Unless the application is likely to be contentious it may be made
without notice (see Ghafoor supra).
Often, it is only once an executor has taken probate and the
administration of the estate has, or should have, commenced that
problems occur, in particular where an executor is uncommunicative,
slow and inefficient in the administration of the estate, or has
fallen out with his co-executor or the beneficiaries. Ideally, of
course, it is generally in everyone’s interests that disputes
between executors and beneficiaries should be resolved amicably.
However, where this approach fails, there are a number of relevant
options to consider in order to obtain information from an
executor, or ultimately to replace him.
Inventory and account
The least expensive and, in theory, the quickest way to compel
an idle or uncommunicative executor to account for his activities
is to apply for an order that he exhibit an inventory and account
in respect of the administration (see AEA s.25(b)). This should be
done by applying to the Probate Registry by summons supported by an
affidavit (NCPR r. 61). Once obtained, the inventory and account
can be examined by the beneficiary in order to assess whether any
further steps are needed in respect of the executor.
Although the general orthodoxy seems to be that an application
for inventory and account is the most efficient first step in
resolving difficulties with executors, in some circumstances its
practical benefit is debatable. There may be some situations where
it is clear that even if the executor responds to an order to
produce an inventory and account he will still be an unsuitable
candidate to continue administering the estate. It may also be that
an executor who has been particularly inert or unresponsive will
equally fail either adequately or at all to respond to an order to
produce an inventory or account. Whilst the order can, in theory,
be enforced by committal, the beneficiaries may be more inclined to
focus their energies on replacing such an unresponsive executor
than on having him committed. In appropriate circumstances, an
application under s.50 Administration of Justice Act 1985
to remove an executor could be considered, either after the order
for an inventory and account has failed to produce an effect, or in
clear cases, instead of applying for such an order.
If all other attempts have proved fruitless, and the
administration is not progressing to the beneficiaries’
satisfaction, they could consider applying for the executor to be
removed or replaced under s. 50 of the Administration of
Justice Act 1985.
A recent case in this regard is Heyman v Dobson 
EWHC 3503, where a residuary beneficiary brought an application
under s.50 having been unable to obtain any response from the
executor to requests for information regarding the estate. The case
is a useful starting point when considering a s.50 application
since the judgment reviews the little authority that exists in this
context. What is clear is that whether a s.50 application will
succeed is a matter for the discretion of the court and that the
overriding considerations are broadly the proper administration of
the estate and the welfare of the beneficiaries. Interestingly, it
is not necessary to establish wrongdoing or fault on the part of
the executor. The court will generally replace an executor where,
for example, relations between him and the beneficiaries have
simply broken down to such an extent that it is no longer possible
to progress the administration of the estate properly.
It is generally widely recognised that in the vast
majority of cases the appointment of a judicial trustee is an
unnecessarily costly and convoluted process
If a s.50 application is not being made in the course of
existing proceedings, it should be brought in the Chancery Division
of the High Court using a Part 8 Claim Form, and supported by
written evidence (see CPR Part 57). If there is more than one
executor, the others must all be joined as parties, often together
with the residuary beneficiaries. If a sole executor is being
removed, a substitute should be sought otherwise the estate will be
It is also still possible for a beneficiary to apply to the
court under s.1 of the Judicial Trustees Act 1896 (JTA)
for the appointment by the court of a judicial trustee to
administer the estate either together with the current executor, or
as a replacement. The judicial trustee is entitled to remuneration
out of the estate by order of the court.
It is generally widely recognised that in the vast majority of
cases the appointment of a judicial trustee is an unnecessarily
costly and convoluted process, and a s.50 application to replace or
remove an executor will be far preferable. As a result the
jurisdiction under the JTA is now little used in this context.
There are, however, two main caveats to this.
The first case where in certain circumstances an application for
a judicial trustee may be more appropriate than a s.50 application
is in the context of mutual wills (see Thomas and Agnes Carvel
Foundation v Carvel  4 All ER 81).
The second is if the administration of an estate is likely to be
particularly complex for some reason. In this case the appointment
of a judicial trustee may be considered since they would have
easier access to guidance and supervision from the court and can
seek directions at any time (see Judicial Trustee Rules 1983, r.8).
This is potentially not only more practical for all concerned, but
may also act as a safeguard for the beneficiaries.
If the more usual application has been made to remove a current
executor under s.50 AJA 1985, the court is expressly entitled to
proceed as if the application were for the appointment of a
judicial trustee if it thinks fit (and vice versa) (s.1(7) JTA
1896, s.50(4) AJA 1985).
Finally, the beneficiaries should have regard to CPR Part 64 by
which the court has a wide-ranging jurisdiction in matters
concerning the administration of estates. CPR PD64 paragraph 1
contains examples of the types of claims that may be brought, which
include claims for an order requiring an executor to provide an
account, which can be verified if necessary, and for an order
requiring an executor to do or not to do any particular act.
In addition, under CPR Part 64.2(b) the court retains the
ability to make an administration order by which the administration
of an estate is effectively taken over by the court (rather than
with the supervision of the court as with a judicial trustee).
Administration orders are now exceptional. This is reflected in
the fact that under CPR PD64 paragraph 3.1 the court will only make
an administration order if it considers that the issues between the
parties cannot properly be resolved in any other way.