Lucie Wood, a leading expert in Chancery, Probate, and Trusts law, has authored this in-depth series addressing four pivotal issues that arise in the administration of estates and the contesting of wills. These articles offer a thorough examination of complex matters, including the removal of personal representatives, claims for provision under the Inheritance (Provision for Family and Dependants) Act 1975, the doctrine of mutual wills, and the requirement of knowledge and approval. Lucie’s expertise provides legal professionals with the clarity and practical guidance needed to navigate these intricate areas of law.
I am often asked for my opinion in relation to the prospects of success regarding an application to remove or replace a personal representative due to a breakdown of relations and/or concerns regarding the personal representative’s execution of their duties. Hence the question in the title of this article.
Before attempting to tackle this question, I have noted that there can be some confusion as to the appropriate route for making an application to remove or replace an executor where there has not been a grant of probate. It can be thought that the only route, in those circumstances, is ‘passing over’ under section 116 of the Senior Courts Act 1981. Whilst that can be an option, it is not the only one. As was made clear in Re Goodman, deceased [2013] EWHC 758 (Ch), an application to remove or replace an executor, in those circumstances, can be made under section 50 of the Administration of Justice Act 1985; the advantage being that it is not necessary to show ‘special circumstances’, as would be required under section 116. It is worth noting that the same is not true where letters of administration have not been granted. In those cases, where the beneficiaries do not wish the person with priority to take out letters of administration, the appropriate route would be under section 116.
So, what is the tipping point from being frustrated with the actions of a personal representative to actually being able to take action? Unsurprisingly, the answer is that it is fact-sensitive, and it will depend on the facts of the particular case. However, a ‘key ingredient’ to a successful claim is that the removal of a personal representative is in the interests of the proper administration of the estate and the best interests of the beneficiaries as a whole. A useful question to ask is whether the administration of the estate can be achieved expeditiously, in the best interests of the beneficiaries, without some change being made.
The Court will not exercise its jurisdiction under section 50 lightly and ‘the party seeking change must satisfy the court that there are substantial grounds which make a change necessary’ (Harris v. Earwicker [2015] EWHC 1915 (Ch) (para. 39)).
In paragraph 9 of the Judgment in Earwicker there is a useful summary of the key principles to be applied by the Court on a section 50 application. But what underpins all the principles, no matter what the circumstances, whether it be a breakdown of relations or wrongdoing or fault on the part of the relevant personal representative, is the question of whether it is affecting the due administration of the estate and is removal or replacement, therefore, in the best interests of the beneficiaries as a whole.
To return to my question… whilst it will only ever be possible to advise on prospects when all the facts are known, a good preliminary indicative litmus test is whether the ‘key ingredient’ is present.
Answering this question is beset with difficulty. It is trite that determinations of claims under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’) are incredibly fact-sensitive and considerable caution should be taken when trying to draw parallels with decisions in reported cases. Matters are further complicated by the fact that the 1975 Act gives ‘virtually no help’ in deciding how to evaluate claims by adult children or how to balance them with other claims on the estate (per Baroness Hale in Ilott v. The Blue Cross and others [2018] A.C. 545, with whom Lords Kerr and Wilson agreed).
In light of this, what can usefully be said in response to the above question? First, it is well-established that the mere existence of a blood relationship and necessitous circumstances do not, without more, amount to an obligation in respect of reasonable financial provision. This ‘something more’ has been referred to as a ‘moral obligation’ or ‘moral claim’ (Re Coventry (deceased) [1980] Ch 461). However, whilst there will be cases where the ‘something more’ could only be a moral claim, it is crucial not to fall into the trap of thinking that this is a necessary prerequisite to a successful adult child claim.
Instead, it is important to remember that claims from adult children are to be assessed by reference to the same criteria, set out in section 3 of the 1975 Act, as any other claimant who is subject to the maintenance standard. However, as with all such claims, there must always be a value judgment that cannot be derived from, what was described by Black LJ when Ilott was in the Court of Appeal as, ‘a dispassionate study of each of the matters set out in s.3(1)’. This brings with it further difficulty, as was commented on by Black LJ:
‘the jurisprudence reveals a struggle to articulate, for the benefit of the parties in a particular case and of practitioners, how that value judgment has been, or should be, made on a given set of facts’.
Notwithstanding this indisputable difficulty, assistance can be derived from a consideration of relevant case law in terms of identifying the factors which have been found to tip the balance and constitute the ‘something more’ and identifying those which have not.
Factors which have been significant in tipping the balance in favour of an award in adult children cases:
Where estoppel-type promises have been made or where there is justified estoppel-type expectation (Re Abram (deceased) [1996] 2 F.L.R. 379; Re Pearce (deceased) [1998] 2 F.L.R. 705).
Where the obligations and responsibilities by the deceased parent to the adult child continued into adulthood, for example, because of disability (Hanbury v. Hanbury [1999] 2 F.L.R. 255; Challinor v. Challinor [2009] EWHC 180 (Ch)).
Factors which have been noted as being significant in tipping the balance against an award in adult children cases:
Long estrangement between the parent and the adult child (Re Garland (deceased) [2007] EWHC 2 (Ch); Ilott v. The Blue Cross and others [2018] A.C. 545).
Financial independence and self-sufficiency of the adult child (Miles v. Shearer [2021] EWHC 1000 (Ch)). As was observed by Oliver J in Re Coventry (deceased) [1980] Ch 461: ‘applications…for maintenance by able-bodied and comparatively young men in employment and able to maintain themselves must be relatively rare and need to be approached, I would have thought, with a degree of circumspection’.
The poor conduct of the adult child towards their deceased parent (Wellesley v. Wellesley [2019] EWHC 11 (Ch); Bye v. Colvin-Scott [2010] W.T.L.R. 1).
Finally, a factor which has been held to be irrelevant in determining whether an award ought to be made in favour of an adult child is the undischarged obligations and responsibilities which the deceased parent had towards an adult child during their infancy (Re Jennings (deceased) [1994] Ch 286).
Therefore, whilst it is certainly not the case that claims should only be commenced in respect of adult children where there is the existence or absence of the factors set out above, they at least provide a guiding light in what is otherwise a fairly nebulous area.
Whilst practitioners now advise against the making of mutual wills, they are still encountered in practice and, when they are, this vexed question can arise. Before moving onto consideration of this question, the first matter to be determined is whether the doctrine of mutual wills applies.
In order for the doctrine of mutual wills to apply, there has to be, what amounts to, a contract between the two testators that both wills will be irrevocable and will remain unaltered. The ‘irreducible core’ of the doctrine has been described as a contract between two testators, T1 and T2, that in return for T1 agreeing to make a will in form X and not revoke it without notice to T2, then T2 will make a will in form Y and agree not to revoke it without notice to T1.
Once it has been established that mutual wills are in existence, the next question is, what happens on the death of T1? If T1 has abided by the agreement by leaving the will unaltered and unrevoked, T2 is bound by the agreement. What this means is that, on the death of T1, T2 becomes the trustee of all the assets of both testators at that date for the benefit of those named in the joint will.
A question which then quite often arises is, can T2 alter or revoke their will? A will is inherently revocable, so the strict answer is ‘yes’. However, in such circumstances, the terms of the original will can be enforced by means of a constructive trust.
Given these constraints, it is crucial to ascertain what assets are subject to the trusts. In a well-drawn will, these assets will be well defined. However, in practice, all too often it will be the case that the trusts extend to the residue of the estate. This is what leads to the question posed at the outset and, in particular, how far is T2 free to deal with their own assets during their lifetime and whether after-acquired assets would be caught by the trusts.
As is acknowledged in Snell’s Equity 35th Ed., ‘no view is free from difficulties’. However, the key to answering the question lies in the terms of agreement. If the terms suggest that T2 should be free to apply the property for his own beneficial use during his lifetime, then the trust arising out of the agreement may be deemed to ‘float’ during this period and then crystalise on their death. This view is consistent with what was said by Dixon J in Birmingham v. Renfrew [1936] 57 CLR 666, which has subsequently been quoted, with approval, in Re Cleaver [1981] 1 WLR 939 and Healey v. Brown [2002] 4 WLUK 529, and is:
‘The purpose of an arrangement [of this sort is] to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying… the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership, so that, for instance, he may convert it and expend the proceeds if he choose’.
However, an important caveat to the above is that it is not permissible for T2 to dispose of property that is subject to the trusts with the intention of defeating the agreement.
Therefore, to return to the question posed at the beginning, the answer lies in the detail of the agreement which gives rise to the application of the doctrine of mutual wills.
Knowledge and approval is one of the essential ingredients in terms of establishing the validity of a will. Whilst there has been some uncertainty regarding what constitutes ‘knowledge and approval’, it is now quite established that it means the testator knew what was in their will and approved of it in the sense of accepting that it sets out the testamentary intentions to which they wish to give effect by execution. It is important not to conflate this with the issue of capacity; the two matters raise separate questions. Capacity is to do with whether the testator was capable of understanding what they were doing; knowledge and approval is concerned with whether they in fact understood what they were doing.
There is a prima facie evidential presumption of knowledge and approval where it is established that a will has been duly read over to a capable testator when it was executed combined with due execution. This position is strengthened if a will has been prepared by a solicitor; in these circumstances there is a very strong evidential presumption that it represents the testator’s intentions at the time the will was executed. However, as was noted in Reeves v. Drew [2022] EWHC 159 (Ch), there have been a number of recent decisions where wills were set aside for want of knowledge and approval, despite the involvement of a solicitor, including, Mundil-Williams v. Williams [2021] EWHC 586 (Ch), Chin v. Chin [2019] EWHC 523 (Ch) and Middleton v. Boorman [2020] EWHC 1481 (Ch) (where the will was prepared by will-writers).
There will be some circumstances when the evidential presumption is insufficient and there needs to be something more to establish knowledge and approval. So, what are these circumstances and what is the ‘something more’? The key phrase, in response to the first part of this question, is that there is something which ‘excites suspicion’ on the part of the Court. The circumstances which are widely cited, as being those where something more will be required, are where the testator is deaf, dumb, blind or where the person who prepared the will receives benefit under it. However, as has been shown by case-law, these are not the only circumstances which will excite the suspicion of the Court. Other circumstances which may give rise to suspicion include where the testator is physically or mentally impaired, frail or illiterate; where instructions are given by a relative who expects to benefit from the will or if they instruct their own solicitor to prepare the will; and/or where there is a sudden, radical and unexplained change in the testator’s previous testamentary intentions.
It is important to bear in mind that the question of whether the circumstances are such as to excite the suspicion of the Court should not be a tick-box exercise. To the contrary, there must be a comprehensive investigation of the circumstances, and the features identified as exciting suspicion must be judged in the light of the full background, including by reference to the relationships between the relevant parties.
The circumstances which are said to excite the suspicion of the Court must be circumstances attending to, or at least relevant to, the preparation and execution of the will itself. The question is not whether the Court approves of the circumstances in which the will was executed, but whether it is satisfied that it truly represents the testator’s testamentary intentions.
As to the second part of the question, the ‘something more’ is affirmative evidence establishing knowledge and approval. This will differ from case to case. Using an example of a blind testator, the affirmative evidence, just in relation to the visual element, may be that the will was read over in the presence of witnesses or the testator otherwise knew its contents.
The question of how compelling and persuasive the affirmative evidence needs to be will depend on the extent of the burden facing the person propounding the will to dispel the suspicion. This burden may be slight and easily dispelled or ‘so grave that it can hardly be removed’ (Wintle v. Nye [1959] 1 All ER 552). Where the will is a simpler document, it may be easier to establish knowledge and approval. To the contrary, where the wording is complex, it is not simply enough to read out the will verbatim to the testator, the effect of the will must be explained in simple language.
The key point to keep in mind is that these questions are highly fact-sensitive and, as was shown by the decision in Fuller v. Strum [2002] 2 All ER 87, in even the most apparently suspicious circumstances, knowledge and approval can still be found.
This series has covered a range of important topics in Chancery, Probate, and Trusts law, offering insights into complex legal questions and practical advice for handling various estate administration challenges. Whether you’re seeking to replace a personal representative, navigating claims for provision from an estate, understanding mutual wills, or dealing with issues regarding the validity of a will, the information provided here serves as a valuable resource for legal professionals.
Lucie Wood’s expertise in these areas provides a strong foundation for addressing these intricate legal issues. For more information or to discuss working with Lucie, please contact her clerks at [email protected]
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