Skip to content

Trustee removal – friction and hostility

The Court has power to remove trustees from office and appoint new trustees in their place as part of its inherent jurisdiction to supervise the due administration of trusts. The principles governing the exercise of this power were summarised by Lord Blackburn in the leading case of Letterstedt v Broers (1883-84) LR 9 App Cas 371. In particular:

"…if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed.  It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate"

However, Lord Blackburn also stated that:

"It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself [emphasis added] a reason for the removal of the trustees." 

There is therefore a tension between ensuring the beneficiaries' interests are treated as paramount and that trustees should not be removed by the Court simply due to a breakdown in the relationship between trustees and beneficiaries. The application of these principles has rarely been tested in the courts in modern times until the last few years. 124 years after Letterstedt, Lewison J applied the principles in Thomas and Agnes Carvell Foundation v Carvell (2007) 4 All ER 81. This case concerned an application to remove a personal representative. Lewison J said:

"The overriding consideration is, therefore, whether the trusts are being properly executed; or, [as Lord Blackburn put it], the main guide must be "the welfare of the beneficiaries"."

Moving on three years, in Augus v Emmott (2010) All ER (D) 70 (a case involving a dispute between the executors which was hampering the administration of the estate), Philip Snowden QC stated:

"It is common ground that, in the case of removal of a trustee, the court should act on the principles laid down by Lord Blackburn in Letterstedt, and that in the case of removing a personal representative similar principles should apply…The Court's power to remove and replace a personal representative is in no way limited to cases of misconduct."

Then, just a day after Philip SnowdenQC's judgment in Augus, Newey J gave his judgment in Kershaw v Micklethwaite and others (2010) EWCR 506 Ch (an application to by a beneficiary to remove executors). In his judgment he stated:

"I do not think that friction or hostility between an executor and a beneficiary will, of itself, be a good reason for removing the executor. On the other hand, a breakdown in relations between an executor and a beneficiary will be a factor to be taken into account, in the exercise of the court's discretion, if it is obstructing the administration of the estate, or even sometimes if it is capable of doing so..."

Finally (for now at least) in Alkin and Another v Raymond and Another [2010] All ER (D) 48 (May) - (an application to remove the executors and trustees of a Will) - George Bompas QC stated:

"As was made clear by Lord Blackburn in Letterstedt v Broers, trustees may be removed even where they have been justified in resisting unfounded or exaggerated charges of misconduct (although that justification may be taken into account in the award of costs)". 

Following the judgments in these cases, a summary of the circumstances in which a trustee may be removed under the Court's inherent jurisdiction, in modern parlance, might be:

  1. where misconduct on behalf of the trustee establishes that the trustee is not fit to act;
  2. where the way in which the trust is being administered has given rise to a breakdown of trust and confidence (or has lead to friction and hostility) between the trustees and one or more of the beneficiaries;
  3. where for whatever reason (even if only because human nature would prevent the beneficiaries working in harmony with the trustee) the continuance of the trustee in office would be detrimental to the proper execution of the trust; and
  4. in any other case where the removal of the trustee would be in the interests of the beneficiaries.

Trustees and personal representatives faced with a hostile application for their removal by beneficiaries need to carefully consider their position, even if the grounds for such an application are simply that there has been a breakdown in the relationship between the trustees and beneficiaries. This is particularly so due to the potential costs consequences for trustees if they choose to resist such an application and the Court decides to remove them.

Find out more about trust and estates disputes.

How to find us:
London Bankside

Bankside Office

240 Blackfriars Road
London
SE1 8NW
DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

London Mayfair

Mayfair Office

6 Grosvenor Street
London
W1K 4PZ

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

Oxford

Oxford Office

6 Worcester Street
Oxford
OX1 2BX

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

Bankside Office

240 Blackfriars Road
London
SE1 8NW
DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

Get directions

Contact us