Brealey v Shepherd & Co [2021] EWHC B26 (Costs) (29 November 2021)

Brealey v Shepherd & Co [2021] EWHC B26 (Costs) (29 November 2021)

Mr Shepherd is not entitled to charge fees for acting as executor because there is no charging clause in the will, no agreement by all beneficiaries, and the requirements of the Trustee Act 2000 for remuneration were not satisfied. The Boardman v Phipps jurisdiction does not apply as no formal application or exceptional circumstances were shown. Fees for Mr Shepherd's work as executor are disallowed; only fees for legal work as solicitor may be considered with proper explanation.

Citation
[2021] EWHC B26 (Costs)
Parties
Claimant: Peter Ian Brealey; Defendant: Shepherd & Co
Jurisdiction
England and Wales
Judgment Date
29 November 2021
Procedural Posture
Detailed Assessment of Costs / Reserved Judgment Following Detailed Assessment Hearing
Outcome
Claimant's challenge upheld in principle; fees for Mr Shepherd as executor disallowed.
Legal Topics
Executor Remuneration, Professional Executor Fees, Charging Clauses, Trustee Act 2000, Detailed Assessment of Costs
Trusts and Estates Costs Executor Remuneration Professional Executor Fees Charging Clauses Trustee Act 2000 Detailed Assessment of Costs

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Parties

Peter Ian Brealey

Claimant

Shepherd & Co

Defendant

Procedural Posture

Detailed Assessment of Costs / Reserved Judgment Following Detailed Assessment Hearing

Legal Issues

  1. 1 Whether a professional executor without a charging clause or beneficiary agreement can charge fees to the estate
  2. 2 Whether the requirements of the Trustee Act 2000 for executor remuneration were met
  3. 3 Whether the Boardman v Phipps jurisdiction applies in the absence of a charging clause or agreement

Ratio Decidendi

Mr Shepherd is not entitled to charge fees for acting as executor because there is no charging clause in the will, no agreement by all beneficiaries, and the requirements of the Trustee Act 2000 for remuneration were not satisfied. The Boardman v Phipps jurisdiction does not apply as no formal application or exceptional circumstances were shown. Fees for Mr Shepherd's work as executor are disallowed; only fees for legal work as solicitor may be considered with proper explanation.

Court Disposition

Claimant's challenge upheld in principle; fees for Mr Shepherd as executor disallowed.

Orders

  • Fees claimed for Mr Shepherd's work as executor are disallowed on assessment.
  • Any fees claimed for Mr Shepherd's work as solicitor require explanation at detailed assessment.