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High Court Reaffirms Position on Executor's Ability to Charge

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The High Court recently reaffirmed that it will not be easily persuaded to exercise its discretion where executors seek an order permitting them to charge for their work.

In Gavriel and Gavriel v Davis [2019] EWHC 2446 (Ch)  the Defendant was appointed as executor for the Claimants’ deceased father in his simple handwritten Will. There was no clause in the Will to allow for her to charge for the work undertaken in this role. The Defendant’s work was considered to be relatively straightforward as the entire estate was to be left to the Claimants as residuary beneficiaries and the composition of the estate was not considered to be particularly complicated.

There were few definitive discussions around the Defendant’s desire to charge and no written agreement had been entered into between the parties at any point.  Nevertheless the Defendant claimed that such an agreement did exist, including by reference to correspondence which she sought to rely upon in support of her claim to charges for her services in administering the estate amounting to a not insignificant £27,300 (by reference to an hourly rate of £230).

At the disposal hearing Chief Master Marsh decided the claim on the available evidence before him, having listed a disposal hearing of the matter.  The Chief Master concluded that the Defendant’s evidence was fanciful as the correspondence between the Claimants and Defendant did not suggest there was an oral agreement prior to her obtaining probate as suggested in her witness statement, nor any other agreement to allow the Defendant to charge for the work she had undertaken.

Chief Master Marsh in summarising the issues noted “This is perhaps, more than anything else, a claim that involves a cautionary tale where an executor takes a grant in respect of a will, which does not have a charging clause, without having obtained a clear agreement in writing from all beneficiaries that reasonable or fixed charges can be made.”

Therefore in the absence of an express authorisation in the Will that an executor may charge for their time in administering an estate it is imperative that a clear and unambiguous agreement is reached between the executor with the residuary beneficiary as to the rate and extent of such charges that can be applied, and in most cases, such should be recorded in writing for future reference if needed.

Associate Solicitor Andrew Chandler, a member of our specialist contentious probate team, which is consistently awarded the highest ranking in The Legal 500 in the West Midlands for contentious trusts and probate matters, acted for the Claimants.  Barrister Gavin McLeod of St Philips Chambers in Birmingham was instructed to represent the Claimants.

If you have any queries concerning matters of a contentious probate nature please contact mfg Solicitors LLP on 01562 820181 for advice and representation.