The solicitors had acted for a client and her late husband (Mr and Mrs Folkes) for many years. One son, Con, had taken over the family businesses and the solicitors had acted for both son and mother in several transactions, including gifts between mother and son and a number of wills and codicils over the years for the mother.
By her final will, Mrs Folkes appointed two solicitors in the firm and her accountant as executors, before leaving her estate on discretionary trusts. Mrs Folkes died on 20 December 2014 and her daughter, Jane, first challenged the will on the grounds of lack of capacity and subsequently sought removal of the executors on the basis that they could not be impartial. Con and his family, as well as the executors, disagreed. Jane subsequently raised queries about certain lifetime gifts made by her mother and proposed an independent administrator act as a mediator, who would be able to review the lifetime transactions thoroughly, objectively and without any conflict of interest. Con and his family again wanted the executors to remain in place.
Jane issued proceedings for the removal of the executors, which both Con and his children contested, as did the executors up to the point of a hearing on 24 February 2017. Shortly before the hearing, the executors advised the other parties they were taking a neutral stance regarding their removal.
The Court then ordered that the executors were not entitled to any indemnity from the estate in respect of their own costs and were also jointly and severally liable with the other defendants for Jane’s costs up to the date of the hearing. The defendants all appealed this.
The judge reaffirmed the general principle that costs follow the event and, even though Jane had not “won” on all her claims, the conflicts of interest for the executors were plain and obvious (para 61(4)) and it was unreasonable of them to resist removal (para 58(2)) – even though Con and his children resisted the removal; the executors should have let Con argue the point. The judge affirmed that:
“If the trustee did not act reasonably, he will be ordered to pay the applicant’s costs and deprived of his indemnity[2].”
At paragraphs 113 and 114 of his judgement the Judge set out the provisions of paragraph 1 of Practice Direction 46, which says:
“1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative (“the trustee”):
1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally.”
The judge went on to advise that, where an application is made to remove executors, they cannot obtain directions from the Court before defending the proceedings, so paragraph 1.1(a) is not relevant. Paragraphs 1.1(b) and (c) read with paragraph 1.2 state the applicable principles.
The judge also referred to the Law Society’s Practice Note on disputed wills, which states:
“If you are partisan in the litigation, you risk a costs order being made against you personally. Provided you act neutrally in any litigation, the costs of the executor should come out of the estate[3].” commenting (paragraph 131) that:
“In circumstances where all the beneficiaries of an estate are adults, and are able to make their own voices known, and one beneficiary applies to remove the executors, I consider that the advice in the Practice Note is applicable. The executors are well advised to remain neutral and let those beneficiaries who wish to oppose the application do so.”
Regarding the fact that the executors did subsequently adopt a neutral stance, the judge stated that “it would not be just, in general, for executors to contest removal and then realise their own true position, adopt a neutral stance and expect the estate to pay the costs of same” (paragraph 61(5)).
Some of Jane’s allegations questioned the integrity of the executors in terms of the lifetime gifts. The judge advised that removal of the executors did not prevent them from answering any allegations and defending their integrity as appropriate.
The judge went on to reject the executors’ argument that they could not stand down, once they had commenced to act, without an order of the Court as it did not follow that the executors had acted reasonably in resisting the application.
Conclusion
Hindsight is wonderful, but it is critical to remember the importance of remaining neutral in the role of executor and distinguish the different roles one may have – especially where you may also be solicitor to one or more of the beneficiaries and where your advice and actions for the deceased may be in question.
The case has a resonance with Keeling v Keeling[4], where solicitors acted for Mr Stephen Keeling in his capacity as both personal representative and beneficiary, failing to advise Mr Keeling when there was a conflict between his roles as he sought to argue the validity of a lifetime gift to the detriment of the estate as a whole.
For more information
If you would like more information on client care matters, please contact Alex Elphinston.
Notes:
The European Court has upheld the long-standing principle that parties to a dispute should be able to choose their lawyers without having to go through a tender process (or use a framework).
On 8 July, news broke of the staggering fine of more than £183m the ICO intended to levy against British Airways as a result of a hack that took place in 2018, compromising 500,000 customers' data.
The Government has been refused permission to appeal a decision ruling that transitional arrangements in public sector pension schemes are discriminatory.
The Lifeline Project was a well-regarded charity. Failure to carry out the targets within the contracts led the charity into insolvency and resulted in a personal, 7-year disqualification order.
Many local authorities have assessed that a trading subsidiary or trading structure could be beneficial as part of generating income or the service delivery matrix.
On 23 July, trainees from Anthony Collins Solicitors will host an ‘experience day’, which will involve various activities and presentations, with lawyers and non-lawyers from across the firm.
The Office of the Immigration Services Commissioner (OISC) has launched a new scheme specifically for charities and not-for-profit organisations who want to advise EU citizens on UK settlement.
In the second part of our series on contract management pitfalls, we look at the risks and opportunities presented by payment mechanisms in construction contracts.
The Government has resurrected its plans to cap the termination payments for exiting employees in the public sector.
Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.