Khan v Crossland

WTLR Issue: June 2012 #120





Dennis Griffiths (testator) died on 30 October 2008 leaving an estate worth about £430,000. By his last will, made nine years previously, the testator had appointed as his executors two partners in a firm of will writers known as ‘Will Drafters’ (respondents). The sole beneficiaries were the testator’s two stepchildren, Ruth Savidge and David Khan (applicant). The respondents initially proposed to charge 3-4% of the value of the estate to carry on its administration and the beneficiaries, who had already reached an informal agreement as to how to deal with the estate, invited them to stand down. They declined to do so but offered to reduce their fees as a gesture of goodwill given the work already carried out in administering the estate. Thereafter the relationship between the parties became difficult, and the applicant approached another firm of will writers which offered him an unlimited warranty against the legal costs of bringing an application to remove the respondents. In the event, after taking legal advice, the applicant sought an order under s116 of the Senior Courts Act 1981 passing over the respondents on the grounds that there were special circumstances which made it necessary or expedient to appoint himself as administrator. Apart from the fact that the sole beneficiaries were united in their wish that the respondents renounced probate, there had been a serious breakdown in their relationship resulting in the beneficiaries losing all trust and confidence in them. On the other hand, they had been chosen by the testator to act as his executors and, while the reasons for their appointment were unknown, they had done nothing to disentitle themselves from acting. The respondents contended that the application should be struck out as an abuse of process since it had been funded by a trade rival and pursued for an ulterior motive.

Held (allowing the application)

The discretion of the court on an application under s116 of the Senior Courts Act 1981 was wide and the approach in Re Clore (deceased) (No. 1) [1982] Ch 456 and Buchanan v Milton [1999] 2 FLR 844 was preferred to that in AB v Dobbs [2010] WTLR 931. Thus, it was not necessary for executors to have disentitled themselves to a grant before an order could be made. Assistance could be drawn by way of analogy to the cases dealing with applications under s50 of the Administration of Justice Act 1985 as they emphasise the overriding consideration as being whether the trust was being properly administered or the welfare of the beneficiaries. While the testator’s choice of executors was a relevant factor, it was not decisive and had to be balanced against the united wish of the beneficiaries, who were of full age and capacity, that the respondents renounced probate. That was capable of amounting to a special circumstance and, when coupled with the plain fact that the relationship between the parties had broken down (although that circumstance was not in itself conclusive), together they tipped the balance in favour of the application making it expedient to appoint the applicant as administrator. The evidence in support of the respondents’ contention that it should be struck out as an abuse of process did not substantiate an ulterior motive and, as the applicant had continued the action after the warranty on costs had come to an end, it was dismissed.

JUDGMENT [1] This is a dispute over who should administer the estate of Dennis Griffiths who died on 30 October 2008. Under the terms of his will which was executed on 15 February 1999 the respondents, Ms Hanover and Mr Crossland were appointed as executors. At the time of the execution of the will the …
This content is only available to members.

Cases Referenced

Legislation Referenced

  • Administration of Justice Act 1985, s50
  • Non-contentious Probate Rules 1987 (SI 1987/2024), r20
  • Senior Courts Act 1981, s116