Section 50 of the Administration of Justice Act 1985, which contained a power to replace or remove personal representatives, applied to a person named as an executor in a will but who had not been granted probate.

Newey J so held when dismissing appeals by the claimants, Michael Paul Goodman and David Jeremy Goodman, as executors of Everard Nicholas Goodman (“the deceased”), from the decision of Master Bragge on 9 January 2013 holding that section 50 of the 1985 Act could be invoked without probate having been granted. The defendants, Mina Goodman and Suzanne Judith Goodman, were the deceased’s executrixes.

NEWEY J said that one of the objections raised in response to the first defendant’s application for an independent professional to take over the administration of the deceased’s estate was that section 50 of the 1985 Act was inapplicable in the case of a person who was named as an executor but who had not been granted probate. According to the claimants, an application in respect of such a person had to be made pursuant to section 116 of the Senior Courts Act 1981. Read naturally section 50 of the 1985 Act would apply to a named executor who had not proved. Section 50 conferred a power to replace or remove a “personal representative”. As the definition in section 55 of the Administration of Estates Act 1925 illustrated, the term “personal representative” encompassed both an executor and an administrator. An administrator derived title from his appointment as such by the court; there could therefore be no question of being replaced or removed in advance of the grant of letters of administration. In contrast, an executor derived title from the will, and the property of the deceased vested in him from the moment of the testator’s death. Section 50 did not expressly confine the executors who could be replaced or removed under the section to those who had been granted probate. Further, the definition of “will” was not limited to a document of which probate had already been granted. It was true that there would be a considerable overlap between section 116 of the 1981 Act and section 50 of the 1985 Act if the latter was construed as covering executors who have not proved. It could not, however, be inferred that Parliament did not intend such an overlap. A comparable overlap existed between section 50 and the Judicial Trustees Act 1896, and Parliament must have intended that. The claimants relied on Perotti v Watson [2001] EWCA Civ 116 arguing that that was a binding decision that section 50 was inapplicable in the case of an executor who had not proved. With a degree of hesitation, his Lordship concluded that the view Sir Martin Nourse expressed in the third paragraph of para 27 of his judgment in Perotti’s case was obiter. In those circumstances he was free to consider the ambit of section 50 afresh, and, for the reasons given, it extended to executors who had not proved.