Hudman v Morris [2021] WTLR 877

Analysis

The claimant was the executrix and one of five residuary beneficiaries of the estate of her late father. The defendant, her brother, was the co-executor and a fellow residuary beneficiary. The claimant brought a Part 8 claim under s50 of the Administration of Justice Act 1985 to remove the defendant as executor and, alternatively, sought an order that the defendant be passed over pursuant to s116 of the Senior Courts Act 1981. The claimant also sought the appointment of an independent administrator and was voluntarily willing to step down as executrix if the defendant was removed. The claimant was supported by the remaining three residuary beneficiaries.

The deceased was diagnosed with dementia in 2013. The deceased’s brother died intestate in Australia in 2014 whereupon the deceased became entitled to a third of his estate. One of the deceased’s sons (R) alleged that the deceased had asked him to travel to Australia to deal with the estate and bring back mementos, which the defendant disputed.

In 2016, the deceased executed a lasting power of attorney (LPA) in favour of the defendant. This was revoked by the Court of Protection following an application by R and an order was made appointing an independent deputy to assess R’s costs and arrange payments from the deceased’s funds for R’s trip to Australia. The deceased died before this process was completed, leaving a will which divided his estate among his five children.

Held: application granted

1. (1) Expenses claim: The task of the court was not to decide if the claim to the expenses was justified. The agreement for expenses to be paid had some basis in fact such that they were arguably recoverable as agent’s expenses or on a quantum meruit basis. The objections that had been raised by the defendant – that the expenses had not been reasonably incurred, were tantamount to fraud or financial abuse and had already been rejected during the defendant’s appointment as attorney – had been superseded by the order of the Court of Protection. The defendant’s refusal to contemplate the inclusion of the expenses claim as a claim notified to the executors and his refusal to accept legal advice that it should be included were wrong and unreasonable. The defendant’s conduct demonstrated that he put his own personal views and interests above those of the estate (paras 35, 40-43, 46).
2. (2) Hostility to siblings: Although a poor relationship between the executor and beneficiaries is insufficient to justify the removal of an executor, the defendant had demonstrated a sustained, overt and substantial hostility towards his siblings, including allegations that they were untrustworthy, tried to take advantage of the deceased’s vulnerability and mental illness for personal financial gain and to impose their will to the deceased’s detriment, unduly influenced the deceased in making his will, coerced the deceased to remove a caveat from his brother’s estate, had personal vendettas against him, and improperly brought Court of Protection proceedings. Tellingly, no justification for this hostility had been argued, but the hostility was of a level that meant the defendant could not be trusted to act fairly and conscientiously, and to administer the estate impartially in the interests of all of the beneficiaries, and there were further potential flashpoints (paras 47, 49-50).
3. (3) Conduct as power of attorney: the defendant’s inability to accept the decisions by the deputy and move forward and his insistence on trying to re-open matters, coupled with the unbalanced, strident and discourteous approach to his siblings, showed that the defendant could not be expected to display the reasonable, structured and objective approach to matters involving the deceased’s estate and his siblings’ entitlements under the estate which is essential to the proper and effective administration of the estate (paras 58-60).
4. (4) Wishes of other beneficiaries: the views of the majority of the beneficiaries was a weighty and important factor in support of removal of the defendant (para 63).
5. (5) The defendant’s conduct in relation to the expenses claim, ill-founded hostility towards his siblings and his conduct under the LPA demonstrated that the proper and effective administration of the estate was threatened by his continuing to be an executor, which when also considering the wishes of other beneficiaries justified his removal (paras 35, 40-43, 46-47, 49, 59-60, 62, 65, 69).
6. (6) Alternatively, the relationship between the defendant and his siblings had broken down justifying the appointment of an independent administrator as the task of the executors was impossible (para 70).

JUDGMENT MASTER CLARK: [1] This is my judgment in a Part 8 claim seeking the removal of the defendant as executor under s50 of the Administration of Justice Act 1985, alternatively that he be passed over as executor pursuant to s116 of the Senior Courts Act 1981. [2] The claim concerns the estate of Barry …

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