Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 (26 March 2024)

Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 (26 March 2024)

In the absence of a charging clause in the will and without the written agreement of all executors (including inactive ones), a professional executor is not entitled to remuneration under Trustee Act 2000 s.29(2). The court's inherent jurisdiction to authorise remuneration is exceptional and, in this case, was not justified due to lack of evidence explaining the absence of a charging clause or justifying remuneration. The Costs Judge's refusal to exercise the inherent jurisdiction was a proper exercise of discretion and not open to appellate interference.

Citation
[2024] EWCA Civ 303
Parties
Claimant/respondent: Peter Ian Brealey; Defendants/appellants: Shepherd & Co Solicitors
Jurisdiction
England and Wales
Judgment Date
26 March 2024
Procedural Posture
Civil Appeal / Second Appeal From High Court (king's Bench Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Executor Remuneration, Solicitors' Fees, Trustee Act 2000 S.29, Inherent Jurisdiction, Charging Clauses in Wills
Trusts and Estates Costs Professional Conduct Executor Remuneration Solicitors' Fees Trustee Act 2000 S.29 Inherent Jurisdiction Charging Clauses in Wills

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Parties

Peter Ian Brealey

Claimant/respondent

Shepherd & Co Solicitors

Defendants/appellants

Procedural Posture

Civil Appeal / Second Appeal From High Court (king's Bench Division) to Court of Appeal

Legal Issues

  1. 1 Whether a professional executor (Mr Shepherd) may charge for time spent administering an estate in the absence of a charging clause in the will
  2. 2 Whether agreement in writing of all executors is required under Trustee Act 2000 s.29(2)
  3. 3 Whether the court should exercise its inherent jurisdiction to permit remuneration in these circumstances

Ratio Decidendi

In the absence of a charging clause in the will and without the written agreement of all executors (including inactive ones), a professional executor is not entitled to remuneration under Trustee Act 2000 s.29(2). The court's inherent jurisdiction to authorise remuneration is exceptional and, in this case, was not justified due to lack of evidence explaining the absence of a charging clause or justifying remuneration. The Costs Judge's refusal to exercise the inherent jurisdiction was a proper exercise of discretion and not open to appellate interference.

Court Disposition

Appeal dismissed

Orders

  • No entitlement for Mr Shepherd to remuneration as executor from the estate in the absence of a charging clause or written agreement of all executors.
  • No order for the court to exercise its inherent jurisdiction to authorise remuneration.