A solicitor who acted as executor of an estate is entitled to charge for work done in an administration capacity, but cannot charge for his role as executor due to the absence of a charging clause, a judgment has found.

Shepherd & Co Solicitors appealed a judgment by Master Rowley, sitting as a costs judge, that Robin Shepherd was not entitled to charge for work done as executor of a will he had drafted, as it did not ‘specify provision for payment to be made to Mr Shepherd for acting in the capacity of executor'.

Will

The judgment, handed down this week, acknowledged that the estate administration had been ‘complicated and long-drawn-out, largely because it had been necessary to bring possession proceedings against the claimant and because he challenged or disputed various decisions that were taken by the executors in relation to the estate'.

The firm’s fees reached £153,507.38 – around 15% of the value of Ann Brealey’s estate. She died on 15 April 2015 and left 30% of her residuary estate to her son Peter Brealey and the remainder to her daughter-in-law and grandchildren.

Mr Justice Cavanagh said: ‘Mr Smyth [the only other partner in the firm, apart from Shepherd, at the time the will was executed] was an executor of Mrs Brealey’s estate. As he did not give written approval to payment to Mr Shepherd for the work done as executor, this is fatal to the defendant’s argument based on section 29 of the Trustee Act 2000.’

The firm’s appeal argued that Rowley had erred in law as he failed to take into account that charges sought for Shepherd’s time were sought by the firm and not Shepherd himself.

Cavanagh said: ‘In my judgment, and with respect to Mr Rupert Cohen [for Shepherd & Co Solicitors], there is nothing in this point. If the defendant was entitled to recover costs from the estate for the work that was done by Mr Shepherd in his capacity as executor, it was because he was a partner in the firm. In other words, any right for the defendant firm to recover the charges livied in respect of Mr Shepherd’s work as executor is contingent upon, and resulted from, Mr Shepherd’s right to be paid for that work.’

He added: ‘A distinction between Mr Shepherd and the firm in these circumstances would be wholly artificial.’

The judgment found that ‘in the absence of a charging clause, or the express agreement of the beneficiaries, the entitlement could be derived only from one of the other two potential routes, section 29 of the Trustee Act 2000, or the Boardman jurisdiction.’

Cavanagh added 'that appropriate deference should be shown to the expertise of a specialist judge such as a costs judge.'

The judgment dismissed the appeal and ordered a further detailed assessment of costs in a bid to identify ‘the extent to which the costs charged by [Shepherd & Co Solicitors] to the executors represent fees for the services provided by Mr Shepherd as executor'.

 

This article is now closed for comment.