In the case of Peter Ian Brealey v Shepherd & Co Solicitors – Court of Appeal – [2024] EWCA Civ 303, the Court of Appeal has upheld a Costs Judge’s decisionto disallow an executor’s professional fees, in the absence of an express provision in the deceased’s will entitling her solicitor executors to charge for their time and in the absence of written consent from the executors.

This decision is likely to become a leading case on the subject of the remuneration of trustees and executors.

The factual background to the case involved the administration of the estate of Mrs Ann Brealey who died in April 2014. Her will appointed her brother and BOTH of the partners of Shepherd and Co solicitors. Disputes arose regarding the possession of the deceased’s home and a loan recovery resulting in the executors engaging Shepherd and Co for legal services. 

The firm billed a total of £153,507.38 for services and one of the beneficiaries challenged the entitlement to charge any fees. There was no provision in the will for a professional executor to charge for their fees.  In the past this used to cause major difficulties, butsection 29 of the Trustee Act 2000 now allows for fees to be charged if all executors/trustees gave their written consent. There were 2 partners inShepherd and Co but only one of the partners had ever been engaged in the administration of the estate - the other partner had played no part in the legal work surrounding the will and most importantly had never given his written consent to his own firm charging for its work!

The claimant sought an assessment of those costs. On assessment, it was successfully argued that the absence of a charging clause meant that no charges could be rendered. That decision was upheld on appeal to the High Court and the appeal to the Court of Appeal was equally unsuccessful.

The appeal court found that the Costs Judge had been correct. There was no charging clause in the will and remuneration under section 29 is only available to an executor acting in a professional capacity if each of the executors has agreed in writing. 

This case highlights the requirement for explicit consent from all executors for a professional executor to charge for their services.

Here at Box Legal we provide ATE Insurance for contentious probate.  We are able to arrange cover for all types of will and probate disputes, including claims relating to financial provision, fraud, execution of the will, rectification, and estoppel.

Link to judgment:  Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 (26 March 2024) (bailii.org)