Barraclough v Mell & Ors [2005] EWHC B17 (Ch) (1 December 2005)

Barraclough v Mell & Ors [2005] EWHC B17 (Ch) (1 December 2005)

The payments of £32,000 each to Fiona Fenney and Louise Needham were made by Marilyn Mell under the mistaken belief they were entitled to their mother's share of Leonard Clapham's estate. As such, the payments are recoverable and must be repaid with interest. Marilyn Mell is excused from personal liability for breach of trust by virtue of the trustee exemption clause, as she did not act dishonestly or recklessly. The £20,000 paid to Marilyn Mell in 1999 is a portion and must be brought into account under the rule against double portions.

Citation
[2005] EWHC B17 (Ch)
Parties
Claimant: Alan Barraclough; Defendant: Marilyn Mell; Defendant: Fiona Fenney; Defendant: Louise Needham
Jurisdiction
England and Wales
Judgment Date
01 December 2005
Procedural Posture
Civil / Final Judgment
Outcome
judgment for claimant in part
Legal Topics
Breach of Trust, Mistaken Distribution, Trustee Exemption Clause, Double Portions, Restitution
Trusts and Estates Family Law Breach of Trust Mistaken Distribution Trustee Exemption Clause Double Portions Restitution

Case Brief

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Parties

Alan Barraclough

Claimant

Marilyn Mell

Defendant

Fiona Fenney

Defendant

Louise Needham

Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Are Fiona Fenney and Louise Needham liable to repay £32,000 each to Marilyn Mell as executor of Leonard Clapham's estate?
  2. 2 Is Marilyn Mell liable to Alan Barraclough for breach of trust in misapplying £64,000?
  3. 3 Does the trustee exemption clause in Leonard Clapham's will excuse Marilyn Mell from liability for breach of trust?

Ratio Decidendi

The payments of £32,000 each to Fiona Fenney and Louise Needham were made by Marilyn Mell under the mistaken belief they were entitled to their mother's share of Leonard Clapham's estate. As such, the payments are recoverable and must be repaid with interest. Marilyn Mell is excused from personal liability for breach of trust by virtue of the trustee exemption clause, as she did not act dishonestly or recklessly. The £20,000 paid to Marilyn Mell in 1999 is a portion and must be brought into account under the rule against double portions.

Court Disposition

judgment for claimant in part

Orders

  • Fiona Fenney and Louise Needham are each liable to repay £32,000 with interest to Marilyn Mell as executor of Leonard Clapham's estate.
  • Marilyn Mell is excused from breach of trust by virtue of clause 6(10) of the will but must account to Alan Barraclough for half of the residuary estate, after deducting the loss caused by her breach of trust.