Dorothy House & Anor v Anne Elizabeth Helme & Anor

Introduction

1. On 7 January 2026, I held a disposal hearing in relation to this claim, begun by claim form issued on 12 December 2025, for relief including the appointment of Stone King Trust Corporation Limited in place of the defendants as the personal representatives of the estate of the late Mary Organ deceased, of Garsdon, Wiltshire, and also as the trustees of her will, dated 8 May 2017. I make clear that on 12 December 2025 there was also issued an application for interim relief, including an order under CPR part 25 to preserve the estate of the deceased pending the determination of this claim. The claim was supported by a witness statement dated 12 December 2025 made by Sarah Dodd, the head of legacies of the first claimant, together with one exhibit. It was opposed initially by the witness statement dated the 14 December 2025 of the first defendant, together with two exhibits.

2. There was a hearing of the application for interim relief on the next working day, 15 December 2025, before me. Both sides were represented by solicitors and counsel. As a result of that hearing, I made an order, by consent, granting an injunction until the determination of the claim or further order against the defendants that they should not dispose of or diminish the value of any asset of the estate. I also gave directions for evidence for a disposal hearing of the claim. These required that the defendants’ evidence in answer to that of the claimants be filed and served by 4 PM on 22 December 2025, and any evidence of the claimants in reply (if so advised) by 4 PM on 31 December 2025. I also directed that the disposal hearing should be listed for 7 January 2026 remotely by Teams, with a bundle to be lodged by the claimants by 4 PM on 5 January 2026.

3. Further evidence was filed as follows. A second witness statement was filed and served by the first defendant on 22 December 2025 (albeit after the 4 pm deadline). There were intended to be 11 exhibits to that witness statement, although they were neither filed nor served at that stage. At the same time, further witness statements were filed by the second defendant (together with two exhibits) and by Richard Bate (the sole principal of the defendants’ solicitors) together with four exhibits. On 30 December 2025, a second witness statement of Sarah Dodd was filed and served, and at the same time the first witness statement of Ruth Spurrier (finance director of the second claimant) was also filed and served. Although there was no permission for this, on 5 January 2026, the first defendant filed and served a third witness statement, together with seven exhibits.

4. On 22 December 2025, the defendants by their solicitors wrote an open letter to the claimants’ solicitors, in which they offered to consent to an order replacing them as personal representatives with Stone King Trust Corporation Limited, but on certain terms, including that they “receive the usual indemnity as retiring executors for any claims against them in their role as executors and trustees of the Estate”, and that this was “to be a full and final settlement of the claim and any possible claims by the Charities and/or the Estate against our clients or either of them”. These terms were unacceptable to the claimants. However, by the time of the hearing before me on 7 January 2026, at which both sides were again professionally represented, the defendants had realistically accepted that the court was likely to make an order replacing them as personal representatives of the estate, and hence no longer opposed that part of the order sought.

5. The argument before me accordingly centred on two points only: (i) whether the defendants should be ordered to pay the claimants’ costs of the claim and the application for an injunction (and, if so, on the indemnity basis or the standard basis), and (ii) whether the defendants would be entitled to an indemnity out of the estate for their own legal costs and any that they were ordered to pay to the claimants. At the end of the hearing, I announced that, given the evidence before me and the fact that the defendants no longer opposed their replacement by the claimants’ nominee, I was satisfied that I should make the order replacing the defendants and that the defendants should be ordered to pay the claimants’ costs of the claim and the application for an injunction. However, I wished for further time to think about whether those costs should be awarded on the indemnity basis, and (if so) whether the defendants should be entitled to an indemnity for those costs and their own legal costs out of the estate. This judgment contains my decision on these matters, as well as my formal reasons for the decisions on removal and costs generally. Facts

6. In the light of the concession made by the defendants not to oppose their removal and replacement as personal representatives, it is not necessary for me to go into the facts in as much depth as I might otherwise have done. What follows is therefore sufficient for the purposes of explaining my decision on the removal application, and giving and supporting my decisions on the remaining issues, dealing with costs and indemnity.

7. Mary Organ died on 16 December 2017, unmarried and without issue. She was the daughter of James Organ, who had several siblings. One of them was Emily, who married Hubert Jones, and their son Gordon had a son called Daniel, who is the second defendant. He is accordingly the son of a first cousin of the deceased, which makes him her first cousin once removed. Another sibling of James was Patience, who married Cyril Evans, and had five children, including Francis and Doreen. Francis had a son called Simon Evans. So he too is the son of a first cousin of the deceased, and thus is also her first cousin once removed. Simon Evans and the second defendant are therefore second cousins. These relationships play a part in the story. The will

8. Mary Organ’s will was drafted by the first defendant, a solicitor in the employ of Richard T Bate & Co solicitors, of Tetbury, Gloucestershire, who had previously acted for her. The will gave a number of pecuniary legacies, totalling £200,000. These included a gift of £100,000 to the second defendant, £10,000 to her maternal uncle Ivor Philpott, and £10,000 to her first cousin Doreen Joseph (née Evans), as well as some legacies to friends and former employees. She also gave £20,000, a tractor and one of her properties (1 Church Farm Cottages, Garsdon) to a man called Peter Outlaw, who features further in the story. Her will then left the entire residue of her estate to the claimants, two charities. The testatrix made two codicils to her will. The first, in September 2017, gave a paddock to Peter Outlaw. The second, in November 2017, gave him another parcel of land (The Saw Mill, Garsdon). But the latter gift was qualified by a restrictive covenant, prohibiting residential or commercial development on the land. The deceased’s estate was valued for probate at £4,717,302 net, but in the estate accounts was shown as valued at the date of death at £3,687,904.09.

9. By her will, the testatrix appointed the first defendant and Daniel Jones, her first cousin once removed, as the executors of her will. She appears to have particularly relied on the second defendant, who is also a farmer, in the period before her death. In the bundle there is an undated manuscript letter from the testatrix to the second defendant. This reads in part: “I have made you an exeter [sic] of my will, so mind & do the best you can it will be what you say goes. not anyone else.”

10. The will incorporated the STEP Standard Provisions 2 nd edition. Those Standard Provisions provide, inter alia : “2.1 In these provisions, unless the context otherwise requires:- [ … ] 2.1.4 ‘Principal Document’ means the document in which these provisions are incorporated. [ … ] 2.1.6 ‘Trust’ means any trust created by the Principal Document and an estate of a deceased Person to which the Principal Document relates. [ … ] 10 Trustee remuneration 10.1 A Trustee acting in a professional capacity is entitled to receive reasonable remuneration out of the Trust Fund for any services that he provides to or on behalf of the Trust. 10.2 For this purpose, a Trustee acts in a professional capacity if he acts in the course of a profession or business which consists of or includes the provision of services in connection with: 10.2.1 the management or administration of trusts generally or a particular kind of trust, or 10.2.2 any particular aspect of the management or administration of trusts generally or a particular kind of trust. 10.3 The Trustees may make arrangements to remunerate themselves for work done for a company connected with the Trust Fund. [ … ] 12 Liability of Trustees 12.1 A Trustee shall not be liable for a loss to the Trust Fund unless that loss was caused by his own actual fraud or negligence. 12.2 A Trustee shall not be liable for a loss to the Trust Fund unless that loss or damage was caused by his own actual fraud, provided that: 12.2.1 the Trustee acts as a lay trustee (within the meaning of section 28 Trustee Act 2000 ); and 12.2.2 there is another trustee who does not act as a lay trustee. 12.3 A Trustee shall not be liable for acting in accordance with the advice of counsel, of at least five years’ standing, with respect to the Trust. The Trustees may in particular conduct legal proceedings in accordance with such advice without obtaining a court order. A Trustee may recover from the Trust Fund any expenses where he has acted in accordance with such advice. 12.4 Clause 12.3 does not apply: 12.4.1 in relation to a Trustee who knows or has reasonable cause to suspect that the advice was given in ignorance of material facts; 12.4.2 if proceedings are pending to obtain the decision of the court on the matter; 12.4.3 in relation to a Trustee who has a personal interest in the subject matter of the advice; or 12.4.4 in relation to a Trustee who has committed a breach of trust relating to the subject matter of the advice. 12.5 Clause 12.3 does not prejudice any right of any Person to follow property or income into the hands of any Person, other than a purchaser, who may have received it.” Early administration

11. As I have said, the testatrix died in December 2017. By then she was in a care home. It appears that the defendants, as nominated executors, became aware of the death only in January 2018. They did not however then or thereafter notify the claimants of their interest under the will. In fact, it was Mr Outlaw who informed the claimants, in August 2020, more than 2½ years later. The claimants and later their solicitors wrote to the defendants between then and 2022, asking them for information and encouraging them to progress the administration of the estate. They became frustrated with the lack of progress, and on 9 March 2022 their solicitors sent the defendants a letter of claim, which also requested that they consent to be replaced as personal representatives. The defendants declined to be replaced, and extracted a grant of probate in April 2022.

12. In a letter of 22 April 2022, the defendants’ solicitors told the claimants’ solicitors that they considered there were “planning permission deficiencies” in the new development area of the Church Farm land, and also referred to some of the activities of Mr Outlaw in relation to land forming part of the estate, which the defendants were investigating. In a letter of 11 August 2022, they explained the delay in applying for probate as follows: “In view of the late discovery of numerous suspected gifts made by the Deceased, of which the Executors were unaware until going through her boxes of papers, bank statements and diaries, the IHT tax position could not be determined.”

13. In her first witness statement, of 14 December 2025, the first defendant gave a more ample explanation. She attributed the delay to the difficulty in finding and collecting together the documents relating to the estate, the gifts that she was said to have made to Mr Outlaw and others, the need for major attention before the assets could be sold, and various “crises” that had to be attended to, including Mr Outlaw’s filling in of a drainage ditch (which caused flooding), the subsequent breakdown of the drainage system for two cottages, and an application by Mr Outlaw for the removal of a restrictive covenant on a piece of land given to him by the testatrix (the subject of the second codicil to her will, but apparently then given during her life). She also blamed the Covid pandemic, as it meant that only half the defendants’ solicitors’ staff could attend the office.

14. In relation to not contacting the claimants, the first defendant said: “38. The executors did not contact the beneficiaries of the estate because matters were so uncertain about what monies had been taken and could be recovered and what needed to be done to bring it to a point when Probate could actually be applied for and then the assets gathered in.”

15. In her second witness statement, of 22 December 2025, she refers in addition to “threatening” behaviour by Mr Outlaw, as well as his diverting water supplies to his field, and so causing flooding, and the finding of boxes of rifle bullets stored in the barn, so that the police had to be called in. She says that the actions of Mr Outlaw’s family in the cottage that they occupied was such that the defendants “had to start to prepare an Injunction to protect the adjoining cottage still held within the Estate”. She goes on: “37. For this reason, the administration was severely hampered for the first two years because of all the work that needed to be carried out, to see what assets there were and what had disappeared.

38. The other significant reason for not contacting the residuary beneficiaries initially was because the Executors were unsure as to what influence Peter Outlaw seemed to exert over Mary Organ and whether the two Codicils made in 2017 were valid and perhaps even the Will itself … ”

16. In his witness statement of 22 December 2025, the second defendant (who lives in Bedfordshire) describes how, after attending the funeral of the testatrix, he and his wife visited Church Farm, and found it “in a shocking state”. They thereafter “undertook extensive work which took several years to try to restore the estate to a condition suitable for sale and achieve the highest possible value”. This involved a round trip of just under 200 miles per visit, spending several hours there each time. The work involved clearing medical equipment, finding paperwork for the solicitor, removing rotten furniture and cleaning run-down buildings. The farmhouse had to be cleared of an infestation of rooks, and then cleaned of droppings. They also restored boundaries, repaired fences, installed stiles, renovated locks, and rebuilded a drystone wall. A property called Honeysuckle Cottage required extensive remedial work. The overgrown garden had to be cut back. The second defendant also gives evidence of the obstructions and problems caused by the behaviour of Mr Outlaw.

17. The defendants eventually sold Honeysuckle Cottage for £640,000 in late 2022, having discussed and agreed the terms of sale closely with the claimants. They then distributed the net proceeds of sale to the claimants. From this I infer that the pecuniary legatees (other than Peter Outlaw, who owed money to the estate) had been paid, and that therefore the claimants were in effect the sole remaining beneficiaries, to receive in due course the proceeds of sale of the other properties in the estate. Church Farm

18. However, the defendants began marketing a valuable part of the estate known as Church Farm (“the Farm”) only in 2023. This consisted of the farmhouse, the farmyard, a barn known as the Tythe Barn, and land adjoining. In July 2023, Savills valued these parts of the estate at just under £2 million, and the whole of the land in the estate (including those parts) at £3,625,000. The Farm did not sell quickly. Persons initially interested wanted only parts of the property, which would have meant lotting, marking boundaries, and imposing easements and covenants.

19. Eventually, on 2 June 2024, Simon Evans and his wife Tessa made an offer to Richard Bate (the sole principal of the defendants’ solicitors, and therefore the employer of the first defendant) to buy the whole of the Farm for £2,200,000. However, it was only on 21 June 2024 that the first defendant informed the claimants about the offer. She referred to the purchaser as a “distant cousin” of the testatrix. In fact, Simon Evans was the son of the testatrix’s first cousin, and therefore was her first cousin once removed. What she did not disclose was that Mr and Mrs Evans were clients of her firm, and that the firm proposed to act on both sides of the sale transaction.

20. The matter did not however proceed for some time, as it appears that the prospective purchasers were waiting on the sale of other property to put them in funds. In July 2024 the first defendant explained that the executors were keen to sell to these buyers because they wanted the whole of the Farm, and this would avoid having to divide it up into lots, requiring cross-covenants and easements. Nevertheless, she agreed that, if the purchasers could not release funds from their existing property, “we will have to put the farmhouse back on the market”.

21. Late the following month (August 2024), the claimants sought confirmation that Mr and Mrs Evans could proceed. The first defendant informed the claimants that she agreed with them “re your concerns”. She had “in fact just spoken to the prospective buyer’s solicitors and stressed the urgency”. But she did not disclose that the solicitor concerned was someone in her firm, and indeed was her own employer. By early October 2024, the claimants were asking for confirmed timelines and a remarketing plan if the sale fell through. Later that month, they chased for a response. On 25 October, the first defendant wrote that “I have told [the buyers’] Solicitor that we really need to complete before Christmas and hopefully much sooner”. She said she hoped to update them the following week. In fact she did not.

22. In mid-November the claimants sought a further update, and were told that the buyers “will be looking to complete in early January 2025”. They asked for another update on 5 December. The first defendant sent a holding reply on 12 December, but the next substantive reply was not until 27 January 2025. This was to the effect that the purchasers were unable to complete yet, but were “still willing to go ahead at £2,000,000”. They were still waiting for the existing farm assets to sell. She said that the defendants considered that it was in the estate’s best interest to persist with these buyers, because (i) remarketing would take time, (ii) all other buyers would want only part of the land, (iii) the difficulties with Peter Outlaw would put off others, and (iv) sale and legal costs would be minimised.

23. The claimants immediately queried why the price had changed, from £2.2 million to £2 million. The first defendant acknowledged this and promised to chase it up. On 28 January she emailed the claimants to say that the price agreed was indeed £2.2 million. On 31 January 2025, the claimants telephoned the first defendant saying that they had been misled into thinking that the prospective buyers were cash purchasers, and that the property should be put back on the market. (It is not clear to me how the claimants thought that the offerors were cash purchasers. The email of 21 June 2024 does not say that.) On 4 February 2025 the claimants asked for a timeline for completion and confirmation that the buyers had £2.2 million available, but if this was not so they wanted the property put back on the market. The first defendant’s response was that the existing assets were up for sale with “several very interested neighbours who wish to purchase”, and that these sales would provide the funds needed to purchase the land from the estate.

24. On 9 April 2025, the claimants’ solicitors wrote formally to the defendants’ solicitors complaining about not being kept informed, about the fact that the Farm still remained unsold, and indeed that some of the sale price from an earlier sale of another property remained outstanding. They stated that the claimants “required” the Farm to be put back on the market immediately, as a backup in case the sale to the buyers did not complete. They asked for copies of all invoices rendered to the executors to date, together with summaries of time spent, and up to date estate accounts. There was no reply to this letter. The claimants’ solicitors chased for one on 2 May 2025, and again on 12 May 2025.

25. The first defendant replied on 15 May, explaining that, because the email of 12 May 2025 was sent to the first defendant’s secretary, and she was away from work because of a bereavement, “the correspondence was missed”. This may well explain how the email of 12 May was missed. But, if the term “correspondence” was intended to cover also the letter of 9 April, it does not explain how that letter was missed, when it was addressed to the first defendant, and not to her secretary. Whatever the explanation, however, the first defendant made clear that the defendants intended to stick with the proposed buyers, and would not be putting the Farm back on the market. There was then silence in June and July, until, on 5 August 2025, the first defendant wrote to the claimants to say that the sale of the property was “going ahead but moving more slowly than we had first anticipated. However, we understand the money is now with the Evans Family in large part.” But there was still no date for exchange of contracts or completion.

26. On 13 August 2025, more than 14 months after the original offer to buy the Farm, the claimants’ solicitors wrote formally once more to the defendants’ solicitors, enclosing a draft consent order, and inviting them to agree to be removed and replaced by Stone King Trust Corporation. This offered the defendants the opportunity to retire without having to pay the claimants’ costs. The claimants asked for a response by 27 August, that is, 14 days later. On that day, the defendants’ solicitors wrote to say that, although Mr and Mrs Evans wished to exchange and complete as soon as possible, this was dependent on receipt of funds from the sale of family farming assets which had still not taken place. The solicitors said that they had asked the prospective buyers to provide a 10% deposit to show goodwill and serious intention “but this has not yet been confirmed”. As to the draft consent order, the solicitors said that the defendants saw “no advantage to the potential beneficiaries of a change in the executorship and trusteeship”. At the same time, however, they also said that they had “informed the Buyers that the property is likely to be placed on the open market”. The letter concluded, “Please let us know how your clients wish to proceed.”

27. The property was not in fact placed back on the open market. The first defendant also says that the claimants refused the idea of the 10% deposit without giving any reason, but I have been unable to trace any documentary record of such a decision. There is an email of 1 October 2025 evidencing payment of £80,000 by the prospective buyers to the defendants’ solicitors to be held by them until the terms of an exclusivity agreement had been reached. This email also appears to be the first occasion on which the claimants were expressly informed that Mr Richard Bate was acting for the prospective buyers in the matter (they had been told a year earlier that the buyers were clients of the firm). A draft of the exclusivity agreement was provided to the claimants about three weeks later, on 20 October 2025. The claimants’ solicitors wrote to the first defendant on 23 October asking her to confirm that the defendants would not enter into the agreement without the claimants' express confirmation to do so. The following day, the first defendant replied, saying that the defendants would not sign the agreement until everything had been agreed. She also told them that she would be on leave from 28 October to 19 November, and if they had any queries during that time they should contact Mr Richard Bate.

28. On Thursday 4 December 2025, the claimants’ solicitors wrote to say that they had heard nothing further about the sale of the Farm, and that they had “unresolved concerns in relation to the potential conflict of interest which we believe exists in relation to the transaction”, given that the only two solicitors in the same office were acting on opposite sides. They requested that the executors undertake not to enter into an exclusivity agreement or other contractual relationship with Mr and Mrs Evans or any other proposed purchaser for the time being. They also resent a copy of their draft order consenting to the removal of the defendants, saying that they were instructed to make an application to court if no consent was forthcoming. They said that the claimants were concerned that little progress had been made in over three months and also at the amount of legal costs incurred in respect of the administration.

29. The defendants’ solicitors replied on Monday 8 December, to say that Mr and Mrs Evans could “proceed immediately with the purchase” of the barn and land adjoining, “and complete before Christmas”. As for the farmhouse and farmyard, they would “have contracts exchanged and completion take place by Easter 2026, or earlier by mutual agreement”. The letter continued, “Contracts have been drafted and we hope that exchange of contracts will therefore take place at the beginning of next week”. There was however no mention of the request for the defendants to stand down. These proceedings

30. On Wednesday 10 December 2025, the claimants’ solicitors replied to say that, unless undertakings not to dispose of or deal with estate assets were given by the defendants by noon on Thursday 11 December, they had instructions to apply for an interim injunction to preserve those assets, the application to be heard on Monday 15 December. On 11 December 2025 the defendants’ solicitors wrote that they were taking their client’s instructions, but that if any application were made they would wish to instruct counsel on behalf of the executors. In the event, no such undertaking was given by the defendants.

31. On Friday 12 December, at 12:33, the defendants’ solicitors emailed the claimants’ solicitors to the effect that they were “responding to your email later today in respect of your various mistaken assumptions re costs and conflict of interest”. The email went on to say that “We have set out the same previously, but will reconfirm to reassure your clients”. On the same day, at 14:46, the claimants’ solicitors emailed to the defendants’ solicitors (filed but unsealed) copies of the claim form, application notice, draft order, witness statement (with exhibit) of Ms Dodd, skeleton argument and authorities. Thus far there had been no intimation that any further step had been taken in respect of the assets in the estate.

32. However, 24 minutes later, at 15:10, the defendants’ solicitors emailed the claimants’ solicitors to say “that Contracts were Exchanged this morning for the sale of the whole of the remainder of the Property at Church farm Garsdon Wilts SN16”. This was followed by an email at 15:15 “to confirm that Contracts were Exchanged for the sale of Church farm Garsdon this morning for £1,200,000”, and another at 15:25 to “confirm that Contracts were exchanged for the sale of Church farm Garsdon this morning for £2,200,000, consisting of completion today for the Tythe Barn and adjoining land at £1,200,000 and for the remaining land for £1,000,000”. It appears therefore that the sale of the Tythe Barn and adjoining land has been completed, but that for the farmhouse and remaining land has been agreed to be sold, but with completion next Easter. The purchasers are the same in each case, ie Mr and Mrs Evans.

33. At 17:58 on the same day the claimants’ solicitors emailed to the defendants’ solicitors sealed copies of the claim form, application notice and supporting documents. At 18:39 the same day, the defendants’ solicitors sent the claimants’ solicitors a long letter refuting the claimants’ criticisms of the defendants’ conduct. As foreshadowed in the defendants’ solicitors’ email earlier in the day, this repeated points previously made in correspondence to the claimants.

34. On Monday 15 December 2025, I heard the claimants’ application for an interim injunction. At that hearing the defendants still resisted their removal, but did consent to an injunction, until the determination of the claim or further order, against the defendants that they should not dispose of or diminish the value of any asset of the estate, and also gave directions for evidence for the disposal hearing. I have now held that disposal hearing, in respect of which this is my judgment, giving reasons for my decisions then, and also in respect of other matters which I did not then decide.

35. On 16 December, the claimants’ solicitors requested information from the defendants as to why they disposed of the Farm when they were on notice of an application to restrain them. No response was received to that enquiry. It was repeated on 19 December, but with a similar lack of response. On 22 December, at 18:48 (so about three hours late), the defendants CE-Filed witness statements, but indicating that, “owing to [their] voluminous nature”, the exhibits “will follow in due course”. The exhibits were in fact uploaded to CE-File early on Christmas Day (though they only became available to the claimants once they were released by court staff on 29 December, which was the next working day), and sent to the claimants by email by 4 January 2026. On 5 January 2026, after the claimants had finalised the bundles for the hearing on 7 January, and had arranged their delivery, the defendants filed the third witness statement of the first defendant, for which they had no permission. (They did not formally seek permission to rely on this at the hearing, but no point was taken by the claimants, and I have, albeit informally, allowed the evidence in.)

36. On the evidence, there are still a number of matters to deal with before the administration can be completed. Many of these arise in relation to Mr Outlaw. He owes significant sums of money to the estate, which have not been gathered in. There appear to have been a number of lifetime gifts by the testatrix to him which on the face of things may give rise to a suspicion of undue influence, and require to be investigated. There may be tax consequences arising out of this investigation. When all the outstanding matters in relation to Mr Outlaw have been concluded, the assets given to him by the will and codicils (assuming he is still entitled to them) will have to be assented in his favour. Because of the conflict of interest complained of, there may also be claims by the estate against the defendants to be investigated and pursued if appropriate. The claimants’ complaints

37. The claimants make a number of complaints about the conduct of the defendants in the administration of the estate of the testatrix. I summarise them as follows: (1) The defendants’ failure to notify the claimants of their interest under the will until 19 August 2020; (2) Delay in the administration of the estate by the defendants; (3) The lack of oversight of the work done at the Farm by the second defendant and his wife; (4) The sale of farm machinery belonging to the estate to the second defendant; (5) The charges made by the first defendant at her private client professional rate for attending the Farm to water the cattle; (6) The conflict of interest caused by two solicitors in the same firm (one being the employer of the other) acting on opposite sides of the sale transaction between the executors and Mr and Mrs Evans; (7) The defendants’ decision not to put the properties back on the market when asked by the claimants to do so; (8) The acceleration of the sale by the defendants after the claimants’ application for an injunction had been lodged.

38. I will deal with the applicable law before considering these complaints and their impact on the issues which I have to decide. Law Removing personal representatives

39. There was no dispute between counsel as to the appropriate principles of law to be applied in considering whether to remove personal representatives. Both sides referred to my own decision in the case of Fernandez v Fernandez [2025] EWHC 2373 (Ch) , in which I dismissed an appeal from the decision of the district judge to remove the executor of a will and replace him by an independent personal representative. In my judgment I set out the principles I thought should apply, and for the sake of convenience I reproduce them here, slightly abbreviated: “44. The removal of executors from office is governed by the Administration of Justice Act 1985 , section 50 , which relevantly reads: ‘(1) Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion— (a) appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or (b) if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons. [ … ]’

45. In relation to section 50 , the claimants referred me to the well-known decision of the Privy Council in Letterstedt v Broers (1884) 9 App Cas 371 . That case was actually about the removal of a trustee, but in The Thomas and Agnes Carvel Foundation v Carvel [2008] Ch 395 , [44]-[47], Lewison J made clear that the same principles applied to the removal of a personal representative. He cited several relevant passages from the speech of Lord Blackburn.

46. The first passage is this (at page 306): ‘It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet, if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.’

47. After that passage, Lewison J commented as follows: ‘46. The overriding consideration is, therefore, whether the trusts are being properly executed; or, as [Lord Blackburn] put it in a later passage, the main guide must be ‘the welfare of the beneficiaries’ … [ … ]

49. … much more recently, Chief Master Marsh in Harris v Earwicker [2015] EWHC 1915 (Ch) summarised the modern position in these words: ‘[9] i. It is unnecessary for the court to find wrongdoing or fault on the part of the personal representatives. The guiding principle is whether the administration of the estate is being carried out properly. Put another way, when looking at the welfare of the beneficiaries, is it in their best interests to replace one or more of the personal representatives? ii. If there is wrongdoing or fault and it is material such as to endanger the estate the court is very likely to exercise its powers under section 50 . If, however, there may be some proper criticism of the personal representatives, but it is minor and will not affect the administration of the estate or its assets, it may well not be necessary to exercise the power. iii. The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account. iv. The wishes of the beneficiaries may also be relevant. I would add, however, that the beneficiaries, or some of them, have no right to demand replacement and the court has to make a balanced judgment taking a broad view about what is in the interests of the beneficiaries as a whole. This is particularly important where, as here, there are competing points of view. v. The court needs to consider whether, in the absence of significant wrongdoing or fault, it has become impossible or difficult for the personal representatives to complete the administration of the estate or administer the will trusts. The court must review what has been done to administer the estate and what remains to be done. A breakdown of the relationship between some or all of the beneficiaries and the personal representatives will not without more justify their replacement. If, however, the breakdown of relations makes the task of the personal representatives difficult or impossible, replacement may be the only option. vi. The additional cost of replacing some or all of the personal representatives, particularly where it is proposed to appoint professional persons, is a material consideration. The size of estate and the scope and cost of the work which will be needed will have to be considered.’ [ … ]

50. In Long v Rodman [2019] EWHC 753 (Ch) , the same judge dealt with another case under section 50 . Of particular significance in this case is the fact, that, as Chief Master Marsh said, ‘17. This application under section 50 is unusual. Often such applications are made after a long period with an administrator in post based on the administrator’s failure to make substantial progress with the administration of the estate. In this case it is broadly common ground that most of the steps that needed to be taken in the estate have been completed or, where that is not the case, a way forward has been agreed that will not involve Mr Long being required to take further action on behalf of Norman’s estate. It is also common ground between the parties that the relationship between Mr Long and the Rodman sisters has completely broken down. The evidence is replete with accusation and counter-accusation …’

51. The Chief Master went on to say: “19. The discretion under section 50 is to be exercised in a pragmatic way … The need for the court to take a pragmatic approach to the jurisdiction has been disregarded by parties who have, on both sides, adopted an approach that is indulgent and wasteful. Much of the evidence is of limited assistance to the court.

20. At the hearing the court has to consider first, whether the circumstances are such that the discretion is engaged, secondly whether an order should be made under section 50 and, thirdly, if so, what order is appropriate. I would add that it will only rarely be necessary for an application under section 50 to result in a trial because it is usually not normally necessary to make findings in relation to disputed issues of fact for the purposes of dealing with the application. [ … ]

52. The Chief Master then … said: ‘22. The core guide to the exercise of the court’s discretion derives from the judgment of Lord Blackburn in Letterstedt v Broers (1884) 9 App Cas 371 , as applied to applications under section 50 by Lewison J in Thomas and Agnes Carvel Foundation v Carvel [2008] Ch 395 . It is the welfare of the beneficiaries.’ In the result, the Chief Master removed Mr Long, for (at [68]), ‘he has conflicts of interest that make it inappropriate for him to remain in office.’

53. And, in Schumacher v Clarke [2019] EWHC 1031 (Ch) , the same judge said: ‘18. It is critical for present purposes that the core concern of the court is what is in the best interests of the beneficiaries looking at their interests as a whole. The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised. If there is a good arguable case about the conduct of one or more of the executors or trustees, that may well be sufficient to engage the court's discretionary power under s.50 , or the inherent jurisdiction, and make some change of administrator or trustee inevitable. The jurisdiction is quite unlike ordinary inter partes litigation in which one party, of necessity, seeks to prove the facts its cause of action against another party’.” Executor’s duty to inform legatees?

40. There are a number of decided cases, some very old, which bear on this question. Most of the earlier ones are discussed in the decision of the Court of Appeal in Re Lewis [1904] 2 Ch 656 . However, that decision was discussed at some length, and followed, in Cancer Research Campaign v Ernest Brown & Co [1998] PNLR 592 , and it was the latter case that was primarily discussed at the hearing before me. There, as here, the plaintiffs were charities who were made residuary beneficiaries under the will of the deceased testatrix. The will also included a number of pecuniary legacies. Most of the estate of the testatrix had been inherited from her brother, who had died in December 1986. The testatrix died in May 1988, and her executor, who was a legal executive employed by the defendant firm of solicitors, obtained a grant of probate in June 1989, when he paid the specific pecuniary legacies. There, as here, he did not inform the plaintiffs that they were the residuary beneficiaries. Instead, they were so informed by a third party. The period within which a deed of variation of the brother’s will could be executed so as to minimise inheritance tax expired without any such deed of variation having been executed.

41. The plaintiffs began proceedings alleging that the executor and the solicitors had been negligent, firstly in failing to advise the testatrix during her life of the possibility of executing a deed of variation of her brother’s will, and secondly, following the death of the testatrix, in failing to communicate to the plaintiffs the source of the assets in the testatrix’s estate, so that the plaintiffs could themselves have executed such a deed of variation. The trial judge, Harman J, dismissed the claim. In giving judgment, he discussed the question whether an executor owed any duty to residuary beneficiaries to inform them of their interest under the will.

42. In relation to this question, the judge said the following (at 609-10): “One starts with the proposition that of course a will speaks from death, and the executor's office springs from the will, but no executor is bound to propound any will or to assume the office of executor. He can decline to act, sit by and do nothing and nobody has any right at law to attack him for it even though they may criticise him in their private capacities for failing perhaps to observe a non-contractual promise which he made to the testator during life. [ … ] It therefore seems to me that at the start of the period after the death of a testator one cannot say that the executor appointed by the will has a duty to act. In this case gradually Mr Palfreyman began (to use the classic words) to intermeddle with the estate. That would have given rise in due course to a right for beneficiaries under the estate to issue the proper proceedings in the Probate Registry to compel Mr Palfreyman to take a grant of probate. It is notable in this case that nobody ever seems to have thought of adopting that obvious and ordinary self-help remedy. Instead, when there were complaints, the legatees went roaring round to the Solicitors' Complaints Bureau and otherwise looked to them to look after their interests rather than protecting them themselves. That is, however, by the by. The point is that there is no immediate obligation upon the executor to do anything. After a time, Mr Palfreyman undoubtedly had intermeddled with the estate sufficiently to make him liable for citation to take a grant of probate. I think that the date by which that arises is mid-July 1988. By that date he has assumed to act as executor. As Mr Kaye rightly submitted, he was not an executor de son tort; he was an executor appointed by a will intermeddling with an estate, and so assuming the office which was granted to him of which probate was the irrefutable evidence of him holding that office. Did there thereupon arise at mid-July 1988, a duty upon Mr Palfreyman as executor to notify legatees? If so, it must surely be a duty to notify all legatees. It cannot be a duty to notify only some. Such a duty could only arise upon a knowledge at that time that there were no debts which would require any abatement of legacies. Until an executor is fully satisfied that there has been a complete payment of all debts, he cannot be under any obligation whatever to pay any legacy or, to my mind, to give notice to legatees of their prospective gain. Further, as it seems to me, the authorities settle beyond any question in this court and in the Court of Appeal, the proposition that there is no obligation upon an executor to give notice to legatees. The authorities are fortunately of respectable antiquity. It was said that I could revisit them in the light of Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 , but I confess to thinking that there is no need to revisit them, whatever that may mean, and that they are in accordance with principle and long settled and fully established law.”

43. The judge then referred in some detail to the decision of the High Court and the Court of Appeal in Re Lewis [1904] 2 Ch 656 . In relation to the Court of Appeal, he said this (at 611-12): “The judgment of Vaughan Williams L.J. is at page 661 (line 6): ‘[Mr Rowland] had to start with this admission – that prima facie there was no duty on the executor to disclose;’ Then further down: ‘It is said ... that, though generally there is no duty on the executor, yet in this particular case there is a duty, [because] by reason of the gift over the executor’ This word appears in the report of Re Lewis , but not in that of Cancer Research Campaign . – notice this – ‘will get an advantage’. This was, as the learned Lord Justice started by observing, a very hard case. The man benefited directly from his own inaction. Vaughan Williams L.J. then cited Lord Hardwicke in Chauncy v. Graydon (supra): ‘Where there is a condition annexed by a will to a devise of real or personal estate, and no notice required to be given, unless the legatees perform the condition, they cannot be entitled, and where there is a devise over, a forfeiture incurs.’ As Mr. Rowlands very properly says, that is against him; but [Lord Hardwicke went on to say] ‘It is said the executors should have given notice, but the testator has laid no such obligation upon them, neither do the executors take any beneficial interest ... ’ Lower down on 662, Vaughan Williams L.J. says: ‘ ... we must start with the assumption that there is no duty to give notice imposed on the executor either by the general law or by the special provisions of the will.’ Romer L.J. – perhaps the greatest of the three Romers who have been Lords Justices – observed (page 663): ‘It is clear that if the executor in this case had not also been the person entitled under the gift over it could not have been contended since Chauncy v. Graydon that there was any such duty cast upon him ... if [he] had not been the executor it could not have been said that there was any duty cast upon him in his position of devisee under the gift over. That being so, it is difficult to see how you can imply a duty because these two positions coalesce when neither of the positions involves such duty.’ Cozens-Hardy L.J. is to the same effect. This is, therefore, a very strong Court of Appeal, binding upon me, and entirely in accordance with other decisions, notably the decision of In Re Mackay [1906] 1 Ch 25 of Kekewich J—who, whatever may be said about him in other matters, was a great master of Chancery practice.” The judge then concluded (at 613): “It seems to me that those decisions all point very clearly to the proposition that an executor in his capacity as such owed no duty to inform the legatee that there is a prospective legacy.”

44. I note that in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother [2008] 1 WLR 2327 , Lord Phillips MR, giving the judgment of the Court of Appeal (himself, Thorpe and Dyson LJJ), said: “40. … Mr Hinks submitted to us that the reason why wills were open to public inspection was to ensure that effect was given to the wishes of the testator. No material was placed before us in support of such a submission other than a decision, over a century old, that supports the proposition, on the face of it a surprising proposition, that an executor owes no duty to inform a legatee of the terms of his legacy – Lewis v Lewis [1904] Ch 656 .” Although the Court of Appeal called the proposition “surprising”, it did not discuss it in any detail, nor refer to the reasons given for it by Harman J in Cancer Research Campaign (which appears not to have been cited).

45. In my judgment, at least for so long as a nominated executor does not take out probate, or intermeddle with the estate so as to accept the office of executor, and (after six months from the death) render him- or herself liable to citation to take a grant of probate under rule 47(3) of the Non-Contentious Probate Rules 1987, that executor can have no legal duty to notify any person of an interest arising under the will or any trusts under the will. This is because such a person is not obliged to accept the office of executor at all, and without the office there is no juridical basis for a duty to notify. The more difficult question is why there should be no such duty to notify cast upon a person who has intermeddled so as to accept the office, or, indeed, has actually obtained a grant of probate. Harman J’s explanation for this in Cancer Research Campaign is that, until the executor knows that debts will not swallow up the entire estate, he or she cannot be sure that there will be anything to pay or transfer to the beneficiary.

46. He is obviously right that the executor cannot be sure about the debt position, one way or the other, until it has been ascertained. And, of course, there are cases where the estate is hopelessly insolvent, and there never is anything for the beneficiaries. But most cases are not like that, and even estates that look as though they have little or nothing in them may be swollen by post-death events (as was that of George Bernard Shaw, on the success of My Fair Lady : see Re Shaw [1957] 1 WLR 729 , 731). Moreover, the beneficiary of an estate nevertheless has a right to its due administration ( Commissioner of Stamp Duties v Livingston [1965] AC 694 , PC), and that is a chose in action that can itself be dealt with as property ( Hughes v Howell [2021] EWCA Civ 1431 , [16]). I confess that as things stand I have some difficulty in seeing why that significant right, with the correlative duty owed by the executor who has intermeddled or accepted the office to all the beneficiaries of the estate, is not a sufficient interest to justify a duty to inform them of its existence.

47. The contrast with the law of trusts is instructive. The trustee of a trust (whether inter vivos or testamentary) must inform a beneficiary of full age and entitled in possession to some part of the trust fund of the interest: Brittlebank v Goodwin (1868) LR 5 Eq 545 , 550; Re Emmet’s Estate (1881) 17 Ch D 142 , 149. Lewin on Trusts (20 th ed, 2020, [21-008]) suggests, and I agree, that trustees have a similar duty to take reasonable steps to inform a beneficiary with a future vested, vested defeasible or contingent interest, unless there are good reasons not to do so. And there is authority that a similar duty arises in relation to at least some of the class of objects of a discretionary trust: see Re Murphy’s Settlements [1999] 1 WLR 282 , 290; Enright v Enright [2019] NZHC 1124, [198]. These are cases where the beneficiary may ultimately receive nothing at all. However, it is not necessary in this case for me to decide exactly how far the duty goes. It is enough that it exists in at least some cases.

48. The explanation is given that no legatee’s gift can be known with certainty until all the debts are ascertained, and that that justifies not imposing a duty to inform them. However, this explanation proves too little, because there is no suggestion in the cases that, once the debts are all ascertained, and it is known what is left, the duty to inform takes effect. Certainly, the executor does not become a trustee even by paying all the debts, and being left with the residue: Re Mackay [1906] 1 Ch 25 , 30-31. The explanation also proves too much, because some trust interests may never result in a payment or other enjoyment. And the “debt” problem in principle applies to interests arising under trusts too. Thus, if the trust fund is reduced, or even exhausted, in paying properly incurred trust liabilities, the interests of the beneficiaries are reduced or even eliminated altogether. (Indeed, in rare cases, the beneficiary may have to indemnify the trustee because the trust fund is exhausted: Hardoon v Belilios [1901] 1 AC 118 , 124.) Yet the duty to inform nevertheless remains, because only thus can beneficiaries hold trustees properly to account for their stewardship.

49. I accept of course that the two cases are different in this respect, that, at the inception of a trust, the incoming trustee knows what obligations lie on the trust fund, because (generally speaking, at least) it is the trustee who incurs them, whereas the personal representative on accepting office will not know what debts the deceased incurred during life. Nevertheless, these considerations suggest that the matter is not so simple as the decisions in Re Lewis and in Cancer Research Campaign make it out to be. But the matter was not fully argued before me, and the decisions themselves are clear. The former of them at least is binding on me, and it is my duty to follow it. Indemnity of personal representatives for legal costs

50. In relation to the indemnity of personal representative or trustee for legal costs, I was referred to my own decision in Smith v Michelmores Trust Corporation [2021] EWHC 1521 (Ch) , where I said: “7. In principle, trustees and personal representatives are entitled to an indemnity out of the trust funds or estates which they control. Under the general law this appears in the Trustee Act 2000 , section 31(1) , which provides: ‘A trustee – (a) is entitled to be reimbursed from the trust funds, or (b) may pay out of the trust funds, expenses properly incurred by him when acting on behalf of the trust.’ This is applied to the personal representatives of estates by section 35 of the same Act. [ … ]

9. … the meaning of the words used in section 31(1) is clear enough. The indemnity is available for expenses properly incurred on trust business. In the context of costs incurred in trust and estate litigation, however, there are special rules to be found in the CPR, both at rule 46.3 and also at paragraph 12 of the Practice Direction to Part 46. In Price v Saundry , Asplin LJ (again at [22]) described these as “ a commentary upon and complementary to ” section 31 . I understand this to mean that these provisions implement the statutory indemnity in the litigation costs context.

10. The first of these two provisions is as follows: ‘46.3 (1) This rule applies where – (a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and (b) rule 44.5 does not apply. (2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate. (3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis.’

11. The second provision reads as follows: ‘1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative (‘the trustee’) – (a) obtained directions from the court before bringing or defending the proceedings; (b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and (c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings. 1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally.’

12. In Price v Saundry , Asplin LJ summarised the effect of all these provisions by saying: “24. The test for whether the indemnity is available or has been lost or curtailed is also the same under section 31(1) of the 2000 Act and section 30(2) of the 1925 Act. It is best expressed in the form of two questions: were the expenses properly incurred?; and were the expenses incurred by the trustee when acting on behalf of the trust? The answer to those questions is often far from straightforward. They are dependent upon all the circumstances of the case.”

13. Asplin LJ then discussed certain authorities, and concluded: “29. All of this discussion brings one back to the question of whether the costs incurred by trustees in defending an action or arguing a point in the particular circumstances were expenses ‘properly incurred’ when acting on behalf of the trust. It seems to me that ‘properly incurred’ should be interpreted to mean ‘not improperly incurred’. This was the way in which Lindley LJ approached trustee indemnity in Easton v Landor (1892) 62 L.J. Ch 164 and in In re Beddoe, Downes v Cottam (1893) 1 Ch 547 . See also In re Grimthorpe Dec'd [1958] Ch 615 per Danckwerts J at 623. [ …]

31. It seems to me, therefore, that if a breach of trust causing loss to the trust fund or other misconduct is established against the trustee, the trustee may be deprived of his indemnity depending upon all the circumstances. Misconduct in this context should be construed widely to include not only misconduct in the sense of dishonesty but also conduct which is unreasonable in the circumstances. It does not extend, however, to a mere mistake on the part of the trustee: see Lewin on Trusts, 19 th ed. para 27-112. ”

51. After the hearing was over, counsel for the claimants drew my attention to the recent decision of HHJ Charman (sitting as a judge of the High Court) in Shufflebotham v Shuff-Wentzel [2025] EWHC 3321 (Ch) , which had been handed down on 17 December 2025. In this case, two of the three executrices of the will of the deceased sued the third for an order removing her as executrix. That claim failed, but the court allowed the claimants to retire from the trusts whilst ordering the substitute professional personal representative that they had proposed to be appointed to act alongside the defendant. The judge held that the claimants were entitled to their costs out of the estate by reason of their indemnity, but also that the defendant was the successful party overall, and therefore entitled to her costs of the claim. The contentious issues were whether the claimants or the estate should pay the defendant’s costs, and, if the claimants, whether they were entitled to be indemnified against this liability by the estate. The judge held that the claimants should pay, but also that they should be indemnified.

52. In the course of his judgment, the judge stated the relevant principles in this way: “13. Counsel referred me to a number of authorities spanning over 100 years of jurisprudence, from Re Buckton [1907] 2 Ch 406 which set out what became the conventional categories of claims by trustees when their costs liability falls to be considered, to Hanson v Coleman [2025] EWHC 116 (Ch) when the authorities were reviewed earlier this year, and many other decisions in between. I agree with Mr Poole that the most helpful and authoritative analysis is that of Asplin LJ in Price v Saundry [2019] EWCA Civ 2261 at paragraph [27]. Asplin LJ set out the three categories of cases: (1) what she termed a ‘trust dispute’, which is a dispute as to the trusts upon which the subject matter of the settlement is held, and which may be either ‘friendly’ or ‘hostile’ litigation, depending upon whether it is concerned with a matter such as the true construction of the trust instrument which is an issue that needs to be determined in the interests of all interested parties or a matter such a challenge to the validity of the trusts which pits the interests of some interested parties against those of others; (2) a ‘beneficiaries dispute’ where there is disagreement as to the propriety of any act or omission already taken or to be taken by the trustees in the future; and (3) a ‘third party’ dispute with persons other than in their capacity as beneficiaries, in respect of rights and liabilities assumed by the trustees as such in the course of the administration of the trust.

14. Asplin LJ also observed that trustees are entitled to an indemnity against all costs, expenses and liabilities properly incurred in administering the trust, including the bringing and defending of proceedings for the benefit of the trust estate, and have a lien on the trust assets to secure such an indemnity. Further, the trustees also have a duty to protect and preserve the trust estate for the benefit of the beneficiaries. However, a beneficiaries' dispute is usually regarded as ordinary hostile litigation in which costs follow the event and do not come out of the trust estate.

15. The categories identified by Asplin LJ in Price are similar to those that were identified by the court in Buckton .

16. As Master Brightwell said in Hanson v Coleman [2025] EWHC 116 (Ch) at [9], an opposed claim for the removal of a personal representative will frequently be a beneficiaries dispute, but it is necessary to assess the character of the proceedings and the positions adopted by the parties and their conduct in order to assess whether the proceedings should be seen as a hostile beneficiaries dispute or as a claim pursued for the benefit of the trust or estate.

17. It follows from the authorities that in cases which do not fall squarely within one or other of the three categories (and indeed even in some cases which do) it is necessary to examine the character of the proceedings and the positions and approaches of the parties in order to establish both whether the proceedings were 'hostile litigation' and whether the trustees acted reasonably in the proceedings and/or acted as they did pursuant to or consistently with their duty to preserve the trust estate.

18. As to the trustees' right of indemnity, it is stated in Lewin on Trusts (20 th ed) at 48-004: ‘The general principle is that a trustee is entitled to indemnity in respect of costs and expenses properly incurred by him in connection with the performance of his duties and exercise of his powers and discretions as a trustee out of the assets of the trust in respect of which the costs were incurred.’ Further, at 48-005: ‘Even where he is unsuccessful, he is still in principle entitled to recover from the trust fund any costs he has been ordered to pay to the successful beneficiary.’ A trustee is entitled to recover under such an indemnity unless the court orders otherwise. Accordingly, the question which arises is whether in this case the court should order otherwise.

19. Lewin states at 48-006: ‘The right of a trustee to indemnity in respect of costs extends only to costs properly incurred in the execution of the trust. By this is meant costs which have been both honestly and reasonably incurred. A doubt is to be resolved in favour of the trustee, and so the right is sometimes expressed in terms of a double negative, that is, the trustee is entitled to costs not improperly incurred. The right of indemnity can be lost or curtailed by such inequitable conduct on the part of the trustee as amounts to a violation or culpable neglect of his duty as trustee.’

20. Accordingly, a trustee loses her right to the indemnity in respect of costs and expenses which are improperly incurred. An example of such improperly incurred costs is those incurred by a trustee acting for her own benefit or for the benefit of some beneficiaries against others (see e.g. Lewin at 48-008).

21. As Mr Perrin submits, the fact that a trustee is ordered to pay the costs of another party to litigation does not mean that the trustee cannot recoup those costs and the trustees' own costs from the estate. In [sic] example of such a case is Jones v Longley [2015] EWHC 3362.”

53. Counsel for the claimants submitted that this decision did “not develop the principles … but is an application of them in a context which is distinguishable from the matter before” me. Counsel for the defendants agreed that the facts of that case were “very different to the facts in the present case”. However he pointed out that at [19] of his judgment, the judge, citing Lewin , held that any doubt was to be resolved in favour of the fiduciary, so that the burden lay on the party seeking to take away the indemnity to prove its case, and relied on that at [32] in making his decision. I accept that submission, at least in relation to the first element (properly incurred). Costs on the indemnity basis

54. On the question whether costs awarded against a party to litigation should be assessed on the indemnity basis rather than the standard basis, I was referred to the decision of the Court of Appeal in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879 . In that case, Lord Woolf CJ (with whom Waller and Laws LJJ agreed) said: “15. [CPR rules] 44.4(2) and 44.4(3) draw a distinction between the difference in substance between a standard order for costs and an indemnity order for costs. The differences are two-fold. First, the differences are as to the onus which is on a party to establish that the costs were reasonable. In the case of a standard order, the onus is on the party in whose favour the order has been made. In the case of an indemnity order, the onus of showing the costs are not reasonable is on the party against whom the order has been made. The other important distinction between a standard order and an indemnity order is the fact that, whereas in the case of a standard order the court will only allow costs which are proportionate to the matters in issue, this requirement of proportionality does not exist in relation to an order which is made on the indemnity basis. This is a matter of real significance. On the one hand, it means that an indemnity order is one which does not have the important requirement of proportionality which is intended to reduce the amount of costs which are payable in consequence of litigation. On the other hand, an indemnity order means that a party who has such an order made in their favour is more likely to recover a sum which reflects the actual costs in the proceedings. The question of whether an order for costs on a standard or indemnity basis is made in litigation of the sort with which we are here concerned may be a matter of substantial financial significance … [ … ]

32. … there is an infinite variety of situations which can come before the courts and which justify the making of an indemnity order. It is because of that that I do not respond to Mr Davidson's submission that this court should give assistance to lower courts as to the circumstances where indemnity orders should be made and circumstances when they should not. In my judgment it is dangerous for the court to try and add to the requirements of the CPR which are not spelt out in the relevant parts of the CPR. This court can do no more than draw attention to the width of the discretion of the trial judge and re-emphasise the point that has already been made that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm. That is the critical requirement.” Discussion The claimants’ complaints

55. Having set out the relevant law, I now turn to consider the complaints made by the claimants. The first relates to the failure to notify the claimants of their interest under the will until August 2020. Although the defendants did not obtain probate until April 2022, it is clear that each of them accepted the office of executor almost as soon as they learned of the death of the testatrix. The second defendant and his wife began working on the estate’s land shortly after the testatrix’s funeral, and found documents and other information which they passed to the first defendant, who sought thereby to understand what assets belonged to the estate.

56. Whilst on the authorities the defendants had no legal obligation at this stage to inform beneficiaries under the will of the gifts made to them, nevertheless, in practice it is usual for executors to do so in early course. (Although larger charities also engage legacy notification service providers to report on wills once probated.) Accordingly, the fact that the defendants in this case did not do so, and it was in fact Mr Outlaw who told the claimants that they were beneficiaries, would have seemed unusual behaviour to them, given that charities are used to receiving legacies, and indeed might well be described as professional legatees. At the least, the failure to notify would have knocked their confidence in the reliability of the defendants as executors.

57. The second complaint relates to delay in the administration of the estate by the defendants. The defendants explain the long delay (now more than 8 years) in completing the administration by reference to the conduct of Mr Outlaw, the complexity of the estate, and the difficulty of acquiring information about it, as well as the limited resources of the defendants’ solicitors, described as “a small rural practice”. I accept, of course, that Mr Outlaw and his family’s alleged behaviour would have complicated matters, and made the estate more difficult to administer. But that behaviour would not prevent (indeed, it would support) an application, for example, for a grant of probate ad colligenda bona , or a grant limited to an action (formerly ad litem ), to protect or vindicate estate assets, even though the executors might well not then have all the information that would ultimately be needed for a full grant. And the law provides causes of action for wrongs done to an estate by third parties, and remedies, such as injunctions, execution of judgments, and so on, in respect of such causes of action. If the defendants’ solicitors were not up to providing the defendants with the legal service that they needed, the defendants should have gone elsewhere. This was an estate worth several million pounds, and it could afford to pay for proper advice (and litigation services) if needed.

58. The Farm was not marketed until 2023, although probate was obtained the year before. That is over five years after the death. It should not have taken five years for the Farm to be put into marketable condition. Although a good offer was ultimately obtained in June 2024, the prospective buyers did not then have the funds to buy with, and (apparently) neither were they willing to borrow them elsewhere. Instead, they wished the estate to wait indefinitely whilst they tried to sell their other assets. The executors did wait, despite complaints from the claimants, and contracts were not exchanged until 18 months later. They took a significant and in my view unjustified risk in hanging on as long as they did without remarketing the property. Whether it actually caused any loss to the estate is beside the point. This jurisdiction is not about proving loss. It is about whether the executors are acting in the best interests of the estate, whoever is ultimately entitled to it.

59. The third complaint is lack of oversight of the work done at the Farm by the second defendant and his wife. This is denied by the first defendant. In my view, I cannot resolve this issue on the material before me.

60. The fourth complaint is the sale of farm machinery belonging to the estate to the second defendant. This is admitted, but it is said that the equipment concerned was of low value (about £1000) and that the second defendant paid the market price. Assuming that to be so, it is still unauthorised self-dealing. It would have been simple to ask the claimants to consent, but the defendants did not do so.

61. The fifth complaint is that the first defendant has charged the estate at her private client professional rate for attending the Farm to water the cattle. This too is admitted, though the occasions are said to have been few and the time taken small in the overall scheme of things. So far as I can see, the will did not authorise this. It is said that this was necessary because Mr Outlaw did not do what he had promised. Even so, the first defendant was not entitled to charge for her time in doing something outside the scope of the legal services that she provided professionally. It is difficult to believe that someone else locally could not have been found to carry out this service at a rate substantially less than that of a private client solicitor.

62. The sixth complaint is the conflict of interest caused by two solicitors in the same firm (one being the employer of the other) acting on opposite sides of the sale transaction between the executors and Mr and Mrs Evans. The defendants say that they dealt with this conflict in accordance with Law Society Guidelines, because their solicitors fully informed the clients on both sides (Mr and Mrs Evans on one side, and the defendants on the other), and both sets of clients agreed. I do not need to decide whether that satisfied the Law Society Guidelines in relation to the position of the solicitors. What I need to decide is the impact of any conflict on the ability of the defendants to continue as executors of the will of the testatrix.

63. By this time, apart from the problem of the gifts to and the debts due from Mr Outlaw, the only beneficiaries of the estate still concerned were the claimants. And, even taking Mr Outlaw’s interests into account, the claimants were the only persons interested in nearly all the remaining assets of the estate, even if their interest was not yet a full beneficial interest, but only a right to due administration. The executors were under a duty not to put themselves in a position where their duty to the estate beneficiaries might conflict with any other interest which they had (whether fiduciary or personal): Rukhadze v Recovery Partners GP Ltd [2025] 2 WLR 529 , [16].

64. By agreeing to be represented by the same firm of solicitors as their prospective buyers, the defendants were, at the least, rendering it more difficult for them to avoid a conflict. This was especially the case for the first defendant, who was employed by the solicitors, in whose interest it was to act for both sides on the transaction. But both defendants had a duty to secure the best price reasonably obtainable for the estate’s assets if they sold them. The prospective buyers wanted the Farm. The defendants’ bargaining position was blunted by the appointment of the same solicitors for both sides. The defendants could have avoided this problem by obtaining the claimants’ informed consent. However, the claimants were not expressly told that the solicitors were also representing the buyers in this transaction until 1 October 2025, more than 15 months after the offer had first been made, and then only in response to a direct question from the claimants’ solicitors. And by that time the claimants were already actively seeking the removal of the defendants as executors.

65. The seventh complaint is the defendants’ decision not to put the properties back on the market when asked by the claimants to do so. In August 2024 the claimants sought confirmation that the prospective buyers could proceed, or that the Farm would be returned to the market. No such confirmation was received. In January 2025 the claimants made clear that the Farm should be put back on the market if there was no positive movement from the buyers within two weeks. In early February 2025 the claimants asked that, if the prospective buyers did not confirm the availability of their funds, the Farm be put back on the market. The defendants’ response made clear that the buyers did not have the money ready, and yet the Farm was not put back on the market. In April 2025, and twice in May 2025, the claimants asked the defendants to put the farm back on the market. All these requests were refused by the defendants. In August 2025, the defendants finally agreed to put the Farm back on the market, and yet they did not do so.

66. This complaint is tied up with the second complaint above, that is, the delay in selling the Farm. The defendants say that marketing by Savills in 2023 had not produced any sufficient response, and that Mr and Mrs Evans were preferred buyers because they wanted the whole of the Farm, so that it would not have to be split into lots, they knew the Farm and also about Mr Outlaw, and they were offering a good price. They also emphasise the fact that they were appointed by the testatrix herself, and that the testatrix wrote a letter to the second defendant, emphasising that he would make the decisions, and no one else. However, it does not follow that, just because professional marketing at one point in time did not produce a sufficient response, such marketing at a later time would not do so either. Markets fluctuate. There are good times and bad times to sell. The defendants were entitled to take into account the perceived advantages of selling to Mr and Mrs Evans. But they were not entitled summarily to decide that those advantages trumped everything else, including the need to wait for Mr and Mrs Evans to sell their other assets, and the claimants’ own pressing needs.

67. The fact that the testatrix herself chose the defendants as her executors is a factor to take into account in considering their removal, but it is certainly not determinative, nor even of great weight. There is no doubt that the testatrix trusted them to make the best decisions that they could. But that choice, and the expressions used in her handwritten letter to the second defendant, do not operate as a kind of fiduciary exemption clause, releasing them from all the consequences of failing to comply with what would otherwise be their duties. On the contrary, they strike me as a natural form of words for a farmer to use in relation to her cousin’s son, whom she trusted. Given that, in substance, the claimants were the only persons interested in the sale of the Farm on the estate side, the failure by the defendants adequately to respond to, or deal with, the claimants’ requests to return the Farm to the market if the buyers could not show that they were ready to proceed is remarkable. And the refusal in May 2025 to return the property to market after 11 months of waiting, even allowing Mr and Mrs Evans still to continue to sell their own assets if they could, is extraordinary.

68. The eighth complaint is of acceleration of the sale by the defendants after the claimants’ application for an injunction had been lodged. Earlier in this judgment, I set out the sequence of events. I remind myself that the defendants’ solicitors’ letter of 8 December 2025 said that “exchange of contracts will therefore take place at the beginning of next week”. I remind myself also that the claimant threatened to move for an injunction at the beginning of the next week, ie on 15 December 2025, unless an undertaking were given by 11 December 2025. The undertaking was not given, and on 12 December 2025 the claimant issued their application and sent relevant documents to the defendants to inform them. It was only at 15:10 the same day that the defendants informed the claimants that contracts had been exchanged that same morning, ie 12 December 2025.

69. Given the clear indication in the letter of 8 December 2025 the contracts would be exchanged “at the beginning of next week”, the obvious inference is that the sale was accelerated to avoid the possibility that an injunction would be granted on 15 December 2025. The defendants submit that I should not draw that inference. But, despite the various witness statements which they have since made for the purposes of the disposal of the claimant application, they have not put forward any plausible explanation of why the exchange of contracts was moved forward. In these circumstances, I do draw the inference set out above.

70. Overall, I consider that there is substance in all of the complaints made, apart from the third, which I am not in a position to determine. I bear in mind, of course, that the first complaint does not involve any breach of a legal duty, but merely goes to the loss of confidence by the claimants in the defendants’ ability properly to administer the estate. The defendants no longer resist removal from office, but it is right that I at least state my conclusions on that question. For the purposes of assessing whether the defendants should be removed as executors, it is not necessary that I find that there has been any breach of duty, or loss to the estate. I simply ask myself whether it is in the best interests of the beneficiaries of the estate that the defendants be removed and replaced by a professional trust corporation.

71. In my judgment, the defendants have demonstrated a poor understanding of the need for executors to avoid even the potential for a conflict of interest (the fourth to seventh complaints refer), they have taken far too long in the administration so far (the second and seventh complaints refer), probably because they appointed solicitors who did not have the resources or experience to resolve the problems thrown up by the administration in a timely manner, and they have sought to avoid the consequences of their potential conflicts of interest and delays in accelerating the sale of the Farm at the last minute (the eighth complaint refers). Moreover, there are still significant matters which need to be attended to in order to complete the administration, including at least some consideration of the past administration of the estate. In my view, these matters should be dealt with by an independent professional personal representative, such as Stone King Trust Corporation, which seems to me to be a fit and proper person for this purpose. These are my reasons for removing the defendants as executors of the will of the testatrix. Costs

72. At the hearing I announced that I was disposed to order the defendants to pay the claimants’ costs, on the basis of the general rule set out in CPR rule 44.2. The claimants were the successful party, and I could not see a good reason to order otherwise. But the claimants ask for those costs to be awarded on the indemnity basis. As shown from the case law to which I have referred, for that purpose I have to consider whether the conduct of the defendants in the course of this litigation has been “out of the norm” and should be visited by an award of indemnity costs. I make clear that I am not concerned here with the defendants’ conduct of the administration as such. Instead, I am looking simply at the claim and the application made by the claimants, and the defendants’ conduct of their side of it.

73. My conclusion is that the defendants’ conduct of the proceedings has indeed been out of the norm. Not only was there the acceleration of the exchange of contracts to avoid the possibility of an injunction to prevent that happening, without any notice that it would take place, but the defendants did not serve their evidence in complete form on the claimants by the date to which their counsel had agreed, and they then served further evidence for which they had no permission. The defendants also refused more than one offer from the claimants to be removed without paying their costs. It may perhaps be that their solicitors do not have much experience of this kind of High Court litigation. But that is a matter between the defendants and their solicitors, and is not an answer to the claimants’ submission. In my judgment, the defendants must pay the claimants’ costs on the indemnity basis. The defendants’ indemnity out of the estate

74. Under the general law, the defendants have an indemnity out of the estate for “expenses properly incurred … when acting on behalf of the trust [or estate]”. In order to deprive the defendants of that indemnity, I must find misconduct on their part. This includes not only breach of duty, but also unreasonable conduct, though not mere mistake. However, if there is no indemnity in the first place, no question of depriving an executor of such indemnity can arise. There are two elements. The first is that the expense was properly incurred. The second is that it was incurred when acting on behalf of the estate. As already noted above, in Price v Saundry [2019] EWCA Civ 2261 , [22], Asplin LJ said “that ‘properly incurred’ should be interpreted to mean ‘not improperly incurred’.” This appears to reverse the burden of proof for this element. As to the other element, whether opposition by a personal representative to a claim for his or her removal is opposition undertaken when acting on behalf of the estate will be a fact sensitive question: see Hanson v Coleman [2025] EWHC 116 (Ch) , [9].

75. The claimants submitted that the costs of this litigation were incurred by the defendants, not when acting on behalf of the estate, but when acting on their own behalf. The defendants submitted that the costs were incurred when acting on behalf of the estate, because it was for the benefit of the estate to proceed with the sale of the Farm. It may be that the defendants subjectively believed that it was for the benefit of the estate to proceed with the sale to Mr and Mrs Evans. But it does not follow from that that, in opposing an application for their removal, they were acting on behalf of the estate . By 22 December 2025, they had openly offered to consent to being removed, albeit on certain terms. So, by that stage at least, they did not consider that the best interests of the estate required their continuation in office. Indeed, by the time of the hearing on 7 January 2026, they no longer opposed their being removed, and were simply concerned to argue they should not have to pay the costs, or at any rate that they should retain their indemnity out of the estate.

76. In my judgment, the circumstances of this case clearly demonstrate that the claim and application made by the claimants on 12 December 2025 were hostile litigation. This litigation was at the outset resisted vigorously by the defendants, who challenged all the claimants’ various complaints about their behaviour, saw no reason for their being removed, and refused to consent to such an order. The fact that they later changed their mind does not take away from that fact. In my judgment, the defendants were never entitled to an indemnity in respect of the costs of this litigation, because they entered into it and conducted it on their own behalf, and not on that of the estate.

77. However, I add this. If I were wrong in holding that the defendants incurred the costs of this litigation on their own behalf, I would nonetheless have held that they should be deprived of that indemnity. In my judgment, the lengthy delays in the administration of this estate, and in particular in the sale of the Farm, amount to misconduct by the defendants, as seriously unreasonable behaviour, so that the costs of the litigation were not properly incurred. In addition to that, the conduct the subject of the fourth, fifth and sixth complaints amounts to breaches of their duty towards those entitled to the due administration of the estate. They too amount to misconduct, so that the costs of defending the claim were not properly incurred. Taken together, the defendant should certainly not be entitled to an indemnity out of the estate for the costs of this litigation. Whether there is any issue as between the two defendants as to the apportionment of responsibility for this sorry state of affairs is not before me, and can be left to be dealt with (if at all) on a subsequent occasion. Conclusion

78. For the reasons given above, I made the order removing the defendants as executors of the will of the testatrix and replacing them with Stone King Trust Corporation, and ordering the defendants to pay the claimants’ costs of this litigation. In addition, I have, for those reasons, decided that the defendant should pay the claimants’ costs on the indemnity basis, and that the defendants should not have any indemnity out of the estate for those costs, or for their own costs. I should be grateful to receive a minute of order, preferably agreed, giving effect to this judgment.