In a significant ruling, the Court of Appeal has determined that a solicitors firm, whose partners were appointed executors by a will, cannot charge for their time spent administering the estate without an explicit charging clause. This decision, rendered in the case of Brealey v Shepherd & Co [2024] EWCA Civ 303, upholds a Costs Judge’s decision to disallow an executor’s remuneration fees due to the absence of an express provision in the deceased’s will allowing such charges.
The case focused on an estate primarily comprising a high-value property, with Shepherd & Co Solicitors seeking £153,000 for the work carried out by Mr. Shepherd, a solicitor-executor. The main beneficiary, Mr. Brealey, pursued an application for a Third Party Detailed Assessment of costs under s. 71(3) of the Solicitors Act 1974. He contested the estate's liability to cover Mr. Shepherd's costs, arguing that the deceased's will lacked a provision entitling the executors to charge for their services.
According to Andrew Williams, representing Mr Brealey, the crux of the matter hinged on two key issues.
The Court of Appeal ruled in favour of Mr. Brealey on both fronts. However, in relation to the second issue, the Court affirmed that written consent from the non-intermeddling executor was required under s. 29(2), and clarified the parameters for exercising jurisdiction, refusing to exercise it as to award remuneration.
With the first instance decision already widely cited in textbooks, the Court of Appeal's ruling is set to become a leading authority in the field of trustee and executor compensation. This landmark ruling underscores the importance of clarity and fairness in determining trustee and executor remuneration. It provides much-needed clarity to legal practitioners navigating the intricate landscape of trust and estate administration. This is further emphasis that the language in a Will must be clear, simple and clauses should be incorporated within a will to ensure executors, solicitors and trustees be remunerated fairly for administering the estate of the deceased as to avoid future litigation.
The Court of Appeal decision in Brealey v Shepherd & Co marks a significant milestone in shaping the legal landscape surrounding trustee and executor remuneration.
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