Gavriel & Anor v Davis

Gavriel & Anor v Davis

There was no agreement or concluded understanding between the Claimants and the Defendant permitting the Defendant to charge remuneration for her work as executrix. The Defendant’s evidence of an agreement was found to be fanciful and unsupported by contemporaneous communications. The Court declined to exercise its equitable discretion to authorise remuneration under the Boardman v Phipps principle due to the unsatisfactory nature of the Defendant’s evidence.

Parties
Claimant: Nicholas Gavriel; Claimant: Tryfon Gavriel; Defendant: Hope Davis
Jurisdiction
England and Wales
Judgment Date
30 August 2019
Procedural Posture
Probate/part 8 Claim / Disposal Hearing
Outcome
Claim allowed. Defendant not entitled to remuneration. No adjustment for penalty or interest charged by HMRC.
Legal Topics
Executor Remuneration, Self Dealing Rule, Charging Clause, Equitable Discretion, Boardman V Phipps Jurisdiction
Probate Trusts Property Executor Remuneration Self Dealing Rule Charging Clause Equitable Discretion Boardman V Phipps Jurisdiction

Case Brief

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Parties

Nicholas Gavriel

Claimant

Tryfon Gavriel

Claimant

Hope Davis

Defendant

Procedural Posture

Probate/part 8 Claim / Disposal Hearing

Legal Issues

  1. 1 Whether the Defendant is entitled to remuneration for work as executrix in the absence of a charging clause or written agreement
  2. 2 Whether there was an agreement or understanding permitting the Defendant to charge fees
  3. 3 Whether the Court should exercise its equitable discretion to authorise remuneration

Ratio Decidendi

There was no agreement or concluded understanding between the Claimants and the Defendant permitting the Defendant to charge remuneration for her work as executrix. The Defendant’s evidence of an agreement was found to be fanciful and unsupported by contemporaneous communications. The Court declined to exercise its equitable discretion to authorise remuneration under the Boardman v Phipps principle due to the unsatisfactory nature of the Defendant’s evidence.

Court Disposition

Claim allowed. Defendant not entitled to remuneration. No adjustment for penalty or interest charged by HMRC.

Orders

  • Defendant not entitled to charge remuneration for work as executrix.
  • No order that Defendant bear any penalty or interest charged by HMRC.