Landmark Court of Appeal decision shapes executor remuneration

Andrew Williams from Exchange Chambers achieved a significant victory in the Court of Appeal in Brealey v Shepherd & Co [2024] EWCA Civ 303, a ruling poised to set a precedent in trustee and executor remuneration.

The case revolved around an estate, primarily consisting of a high-value property, where Shepherd & Co Solicitors sought £153,000 for services rendered by Mr. Shepherd, a solicitor-executor.

Williams, representing main beneficiary Mr. Brealey, contested the estate's liability to pay Mr. Shepherd's costs, arguing that the will lacked a provision entitling executors to charge for their services.

"The decision hinged on two key points," explained Andrew Williams.

"The first question was whether Mr. Shepherd's firm could prove an agreement under section 29(2) of the Trustee Act 2000, allowing him to charge. This rested on whether the subsection mandated the agreement's signature by Mr. Shepherd's co-executor, who did not obtain a grant and played no role in administration.

"The second issue was whether the court should exercise its inherent jurisdiction, the so-called Boardman v Phipps jurisdiction, to authorise Mr. Shepherd's remuneration. This involved determining the circumstances warranting the exercise of this jurisdiction, considering potential inconsistencies in prior rulings."

The Court of Appeal ruled in favour of Williams' client, Mr. Brealey, on both counts. It determined that written consent from the non-intermeddling executor was necessary under section 29(2) and declined to exercise jurisdiction to award remuneration.

Already cited extensively in textbooks, the first-instance ruling in this case is now bolstered by the Court of Appeal's decision, expected to shape future cases in trustee and executor remuneration.

Andrew Williams was instructed by Will Jones of Jones & Co Solicitors and led John Meehan from Kenworthy’s Chambers in this landmark legal battle.