Can I challenge an executor’s costs?

Upon reviewing the estate accounts prepared by the executor, a beneficiary may be concerned that the expenses incurred by the executor are not reasonable, and they may want to challenge the costs.

1. Challenging the costs of a lay person executor

A layperson executor is not entitled to charge for their time and any attempt to do so can be challenged. However, they can charge for out of pocket expenses, as set out in our previous blog ‘Recoverability of executor costs in non-contentious matters’. These expenses might include a refund of the grant of probate fee, property valuation fees, property maintenance fees, and other expenses. Providing that these expenses were incurred in the best interest of the estate and are reasonable, they should be recoverable. Anything falling outside this scope may be challengeable.

2. Challenging the costs of a professional executor

A Will may include a charging clause enabling them to charge for their professional fees, however there must be a connection between the profession or business of the executor and the estate administration itself.

Also Read: Can the Executor of a Will charge fees from the estate of a deceased?

If the Will does not include a charging clause, the executor can attempt to charge for their time either via:

• Section 29 of the Trustees Act 2000.
• The Court’s exercise of its powers under the ‘Boardman jurisdiction’ as set out in Boardman v Phipps 1996, which allow a party undertaking a fiduciary duty to be paid for reasonable work undertaken.

In the recent Court of Appeal case Brealey v Shepherd & Co [2024] EWCA Civ 303, a firm of solicitors lost their appeal against a decision denying them the recovery of professional fees in excess of £153,000. Shepherd & Co were co-executors of an estate and had incurred these costs in the course of the administration. There was no express charging clause and Shepherd & Co did not obtain the express agreement of the co-executor. The Court held that the written consent of the other executor, who was the deceased’s brother, is required to rely on s29 of the Trustees Act 2000. The Court declined to exercise its powers to allow remuneration of Shepherd & Co under the Boardman jurisdiction. The Court therefore saved the beneficiary a £153,000 bill.

3. Challenging the costs of a professional, instructed by an executor

An executor may instruct solicitors to assist with the estate administration. In the case of Kenig v Thomson Snell & Passmore [2024] EWCA Civ 15, the executor instructed solicitors to act on their behalf in the estate administration. The Court of Appeal held the decision of the first judge, that where there is a ‘substantial discrepancy’ between the cost estimate and the final invoice, an explanation should be sought. The Judge ordered an assessment of the solicitor’s bills. This may well lead to a reduction in legal fees.

If you are concerned that an executor has wrongly charged the estate for their costs, please contact us.

On 19 June 2024, Anthony Gold will be hosting a seminar with 10 Old Square Chambers titled ‘Anatomy of a 1975 Act Claim’ during which costs will be discussed in more detail. For further information or to sign up, click on the banner below: