Riley v Seed & Anor [2013] EWHC 4863 (Ch)

Case No 2MA30617[2013] EWHC 4863 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJDate Tuesday, 11 th June 2013
Before
HIS HONOUR JUDGE HODGE QCSitting as a Judge of the High Court
Between
MRS LUCIE RILEYClaimantMISS TRACIE LEE SEEDClaimant-v-MISS JAYNE LESLEY SEEDDefendant
Transcribed from the Official Tape Recording byApple Transcription LimitedSuite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ESDX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838
Counsel for Claimant: MR DUNCAN HEATHThe Defendant appeared In Person with her McKenzie Friend, Mr John Clarke for in person
JUDGMENT(Approved on 3 rd August 2016 without reference to any papers)APPROVED JUDGMENTHIS HONOUR JUDGE HODGE QC:
[1]This is my ex temporary judgment in the case of Lucie Riley and Tracie Lee Seed (as claimants) and Jayne Lesley Seed (as defendant), case number 2MA30617. The two claimants and the defendant are sisters. They are all the daughters of the late Lynda Joyce Seed. She died on 7th September 2012 at the age of 65. The certified cause of death was a malignant brain tumour. A little over a year before her death, Lynda Seed had made a will with the assistance of a firm of solicitors in Heaton Moor, Stockport, called BJ McKenna & Co.[2]The will is dated 25th August 2011. Having revoked all former wills and testamentary dispositions, clause 2 of the will appointed as executors and trustees Lynda Seed’s three daughters, Tracie, Jayne and Lucie. Clause 3 gave pecuniary legacies of £1,000 to each of the grandchildren, provided they attained the age of 21 years. By clause 4, the trustees were directed to hold the remainder of Lynda Seed’s estate upon the usual trusts for sale and conversion and to hold the residue of the estate, after payment of debts, taxes, and funeral and testamentary expenses, for the three daughters in equal shares. There was a substitutionary provision in favour of the grandchildren of any deceased daughter but, happily, that provision has never taken effect. Clause 5 gave certain additional powers to the trustees.[3]The deceased died on 7th September 2012 and her funeral took place seven days later, on 14th September. Problems emerged over the next fortnight or so. Initially, the claimants approached the firm of solicitors, BJ McKenna & Co, who had been responsible for drafting the will, for advice in connection with the administration of the estate and obtaining a grant of probate, but that firm declined to act in the matter and, after some uncertainty as to precisely the identity of the firm to which the matter was to be referred, a firm of solicitors in Stockport, recommended by BJ McKenna & Co, was retained by the claimants. That firm was O’Neill Morgan and they continue to act for the claimants as solicitors in this litigation. The relevant fee earner at the time the matter was concerned with the probate of the will and administration of the estate was Miss Francesca Breakspear. For reasons into which I will have to enter a little more closely, the defendant declined to instruct O’Neill Morgan to act for her in conjunction with her two sisters in obtaining probate of the will and in administering her late mother’s estate.[4]By 19th November 2012, matters between the three sisters had so deteriorated that it was felt necessary by O’Neill Morgan to write a formal letter before action dated 19th November 2012. That letter can be found at B28 to 32 of the hearing bundle. It runs to five pages and 39 paragraphs. The letter made it clear that O’Neill Morgan were acting on behalf of the claimants and it was addressed to the defendant. At paragraph 30 it was said that there seemed to O’Neill Morgan to be five possible scenarios: One was that the defendant should withdraw her allegations against her sisters, sign a letter of authority, and instruct O’Neill Morgan to administer the estate. The second was that the defendant should withdraw her allegations against her sisters, sign a letter of authority to O’Neill Morgan to administer the estate, and allow a grant of probate to be issued to the two sisters, with power reserved to the defendant herself, thereby allowing O’Neill Morgan to administer the estate. Paragraph 31 of the letter made it clear that O’Neill Morgan were not putting any pressure on the defendant to accept either of those two scenarios. That was said to be entirely a matter for the defendant. Scenario three was that the two sisters should make an application to remove the defendant as an executor.[5]Option four was for the defendant to consent to her sisters making an application for all three executors to be removed on the basis that an impasse had been reached. Option five was for the defendant to oppose her sisters in making any application to the court. Paragraph 31 of the letter urged the defendant to give serious and proper consideration to scenarios two and four. That is to say either allowing the two sisters to prove the will, and O’Neill Morgan to administer the estate, or, alternatively, agreeing to all three sisters being removed as executors on the basis that an impasse had been reached. Paragraph 31 went on to say that scenarios three and five would be costly and, so far as O’Neill Morgan could see, to no one’s advantage. Those were the options of the claimants applying to remove the defendant as an executrix and the defendant opposing that application.[6]It was said that if the defendant considered that there was any better way to proceed which would be acceptable to all parties, O’Neill Morgan would welcome any sensible solutions. It was made clear that the claimants would not agree to themselves being removed as executors, but the defendant remaining as sole executor. It was said that it was the claimants’ sincerest wish to obtain a grant of probate and administer the estate as soon as possible and at the least possible cost. The writer reserved the right to draw the letter to the court’s attention as evidence of the claimants’ attempts to resolve the matter without the need for protracted litigation.[7]The defendant sent a detailed email response on the following day, 20th November. That can be found at B33 to 35 of the hearing bundle. It was accompanied by a very detailed document, described as a timeline, which can be found at B36 through to B48. The response from the defendant made it clear at the outset that the defendant’s intention was not to delay the administration of her mother’s estate, but to ensure that the administration was fair and accurate, as she believed that only the people who knew her mother would have the knowledge to know what her wishes were.[8]Having referred to certain correspondence, culminating in an email from the defendant to Miss Breakspear of 5th November (which can be found at D68), the defendant said that Miss Breakspear had not responded in any way to her requests. That was said to be one of several sticking points which she would gladly expand on in court. That was a reference to requests to know what had happened to certain personal items. It is correct to say that after the defendant’s email to Miss Breakspear of 5th November, there had been silence until the letter before claim.[9]Another issue was said to be the denial of the second claimant, Tracie, that she had received a £1,000 loan from her mother. The defendant said that she had checked her mother’s bank accounts and had traced a payment made to Tracie for £1,000. She said that she traced the amount because she believed her mother when she said that she had loaned the money to Tracie and because she wanted to support her mother’s wishes. It is now accepted by the defendant that the £1,000 had been given to Tracie as a birthday present. There is a bank statement which had been provided to the defendant, which recorded a withdrawal from the mother’s bank account of £1,000. That document can be found at C11. It shows a withdrawal on 13th October 2011 and the details given are “TL Seed, Birthday.” The defendant explained in evidence that she had been told by her mother that this was an amount that had been lent to Tracie Seed to pay for a laptop for Tracie’s daughter, Lauren. The defendant explained that Tracie’s birthday was 11th September and Lauren’s birthday was not until the November. Therefore, the reference in the bank statement to a birthday was, to the defendant’s knowledge, inaccurate in terms of point of time. The defendant says that she does now accept that this was a birthday gift because this is what Tracie has now said and has confirmed on oath; but the defendant has made the point that it was not until some time this year that Tracie first explained and confirmed that this was indeed a birthday present rather than a loan.[10]The defendant’s response of 20th November does not deal with a further alleged loan of £10,000 to Lucie which the defendant had understood had been made. The defendant told the court that she had checked the bank statements and had indeed confirmed that the £10,000 had been repaid. She said in evidence that her concern had been that even though she had been told by her mother that this £10,000 had been repaid, in view of a conversation which she had had with her mother and with Lucie, the defendant had been concerned that there might have been a further loan, although she had satisfied herself, by reference to the account documentation, that this was not the case. She had referred to this further assumed loan earlier in correspondence. The defendant said that the reason why she had done that was because at the time she had been concerned that a further loan might have been made, but she did accept that after she had satisfied herself that this was not the case. She did not expressly withdraw the allegation that Lucie had been lent £10,000 which was still outstanding; she had just not pursued it any further. It was for that reason that no reference was made to it in the defendant’s response of 20th November.[11]That response continued:
“In response to your letter email dated 19th November 2012, I agree an impasse has been reached. I refuse to withdraw as an executor as I have watched with growing dismay my sisters’ lack of respect for my mum and her wishes. Your only solution is to remove either me or all of us. On 29th October, I tried to communicate with my sisters in order to resolve the situation, but they have made it clear that they don’t wish to have any contact with me, which was their decision. It is also their decision to try and get me or all of us removed as executors and, as such, they should bear their costs. I have kept a timeline of all correspondence, which I forward for your perusal. My refusal to withdraw as an executor is based on the realisation that I am being kept out of the loop on every level. I have become aware that my sisters have changed the asking price for my mum’s apartment in Heaton Moor without consulting with me and I disagree with this. I feel that if I was to sign an agreement with you then you will be able to take decisions without my agreement and I feel that this is unreasonable. You did not send me a copy of your terms and conditions as it was not included in the letter you posted on 1st November, nor have you previously sent me your terms and conditions.”
The letter concluded:
“Finally, I feel that your stance on withholding information is leading to a snowballing of your time and bill and with this in mind I refuse to allow my mum’s hard-earned money to be squandered in this way and will therefore reject any demand for payment from my mum’s estate.”
[12]Following on from that exchange of email communications, the present claim form was issued in the Manchester District Registry of the Chancery Division on 18th December 2012. The claim form sought an order removing the defendant as a personal representative and trustee of the estate of Lynda Joyce Seed. Alternatively, an order was sought removing both the claimants and the defendant as personal representatives and trustees and appointing a Mr Anthony Penman of Alfred Newton Solicitors, or some other fit and proper person, to act as personal representative and trustee. Various other forms of relief were sought; and it was made clear that the claim was made pursuant to s.50 of the Administration of Justice Act 1985, s.41 of the Trustee Act 1925, and the court’s inherent jurisdiction.[13]Section 50 is relevant to the application to remove the claimants and the defendants as personal representatives and to appoint some other fit and proper person in their place. It has been made clear that the claimants do not seek the removal of the defendant alone. They acknowledge that if she is to be removed, then equality dictates that they too should be removed as personal representatives. The relevant jurisdiction is contained within s.50(1)(a) of the Administration of Justice Act 1985. That provides that where an application relating to the estate of a deceased person is made to the High Court by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may, in its discretion, appoint a person, 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. By s.50(3) the court is empowered to authorise a person appointed as a substituted personal representative to charge remuneration for his services as such on such terms as the court may think fit.[14]Section 41 of the Trustee Act 1925 is relevant to the application to appoint new trustees in place of the claimants and the defendant. By subsection (1) of s.41, the court may, whenever it is expedient to appoint a new trustee or new trustees, and if it is found inexpedient, difficult or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees or although there is no existing trustee. The defendant drew my attention to subsection (4), which provides that nothing in s.41 gives power to appoint an executor or administrator. The power to do so is now conferred by s.51 of the 1985 Act.[15]The application was supported, first, by a witness statement from the first claimant, Mrs Lucie Riley. She provided an overview at paragraphs 3 through to 7. In paragraph 6 she said that the reason for making the application was that:(1) Her sister, Jayne, had refused to sign a form of authority to enable the claimants to obtain their mother’s original will. Until that had been obtained, they could not obtain a grant of probate and very little could be done in the administration of the estate.(2) There was said to be friction between Tracie and Lucie on the one hand and Jayne on the other.(3) They felt unable to work with Jayne.(4) They had instructed O’Neill Morgan to deal with the administration of the estate but Jayne would not join with them in instructing O’Neill Morgan unless that firm were prepared to act on her terms, which it was said they were not.(5) The claimants said that they would like the properties forming part of their mother’s estate to be marketed and sold. That would involve O’Neill Morgan incurring costs, which Jayne had indicated she was unwilling to pay. It was said that she insisted that Tracie and Lucie must pay those costs rather than them coming out of the estate as they normally would.(6) It was said that Jayne had recently indicated that she intended to obtain a grant of probate alone. The claimants would not accept power reserved whilst Jayne conducted the administration of the estate alone. It was said that, frankly, the claimants had no confidence in her administering the estate alone.[16]Paragraph 8 provided the required particulars for the purposes of the relevant Practice Direction pursuant to Part 5 of the Civil Procedure Rules. The estate was said to have a capital value of some £466,000, with liabilities, other than O’Neill Morgan’s costs, of £98,000, meaning that the value of the estate was some £368,000. The estate included bank deposits of some £131,000 and residential properties in Stockport, Northwich and Cape Verde.[17]Paragraphs 9 through to 15 related what was said to be friction between the claimants and the defendant. Paragraph 11 said that Jayne had a neurological disorder known as dystonia and had been under the care of a neurologist for some time. In answer to a question from me at the end of her evidence, the defendant explained that she was suffering from primary dystonia, not caused by any other medical condition. She described the condition as involving muscle spasms in her neck, together with a body tremor. She explained that she had been diagnosed at the age of 28, although her diagnostician was of the opinion that she had suffered from the condition since birth. Jayne said that her condition was stable, that although her symptoms changed from time to time and that she was very, very slowly deteriorating, that would not affect her condition for many years to come. I am entirely satisfied, having observed the defendant during the course of this two-day trial, that her condition would not in any way impact upon her ability to act as an executrix of her late mother’s estate.[18]Paragraphs 16 through to 32 related what was described as the “impasse” which had been reached in the administration of the estate. At paragraph 32 it was said that Jayne was alleging that the claimants owed the estate money, which they did not. I interpose to say that that allegation is no longer pursued by the defendant. It is said that Jayne refused to sign the authority to have the original will released. She refused to instruct O’Neill Morgan to act on behalf of all of them, even though Lucie said that she had only instructed O’Neill Morgan because BJ McKenna & Co had refused to deal with Jayne, and that O’Neill Morgan were an independent firm of solicitors. Lucie says that by instructing O’Neill Morgan, the claimants had hoped to be able to progress matters. “In short, it seemed that we and they were getting nowhere.”[19]At paragraphs 33 through to 44 Lucie relates what she describes as the claimants’ efforts to resolve the dispute. At paragraph 44 she says that the reason that they were not prepared to allow Jayne to administer the estate on her own is that the claimants do not have confidence in her ability. Further, given that she alleges that the claimants owed the estate debts, “she is bound to try and deduct alleged debts from our shares of the residuary estate.” It is said that that would be “incorrect and inappropriate.” I am entirely satisfied that that area of concern is no longer a live issue.[20]The relief sought is addressed at paragraphs 48 to 49, which conclude the witness statement. It is said that the claimants have been unable to take any substantial steps towards administering the estate. Their mother died in September 2012 but three months on the claimants appear no closer to even obtaining the original will due to what is described as Jayne’s refusal and obstructive manner; and the claimants have had to deal with all of this whilst grieving for the loss of their mother. Lucie asserts that the claimants feel that they have tried at every juncture to accommodate Jayne. Lucie refers to the letter before action. She refers to the suggestion on various occasions that a court could appoint an independent executor to replace all three of them, but it is said that Jayne has shown no interest whatsoever in consenting to an order that all three be removed. Lucie expresses her understanding that in cases of this nature the court has a discretion as to whether to remove one executor or all of them. She says that, given that Tracie and she have done their upmost to resolve matters amicably, she would invite the court to remove Jayne and allow Tracie and her to remain as executors, allowing them to administer the estate without further recourse to the legal profession and at the least expense. Alternatively, if the court sees merit in all three executors being removed and an independent executor being appointed, she invites the court to appoint Mr Anthony Penman of Alfred Newton Solicitors. She says that they have had no prior dealings with the firm, but they were recommended to the claimants by Miss Breakspear.[21]There is a short confirmatory witness statement from the second claimant, Tracie Leigh Seed, stating that she agrees with the contents of her sister’s witness statement. There is a consent to act from Mr Penman and a witness statement from Mr Michael Elwyn Morgan of O’Neill Morgan Solicitors confirming Mr Penman’s fitness to act.[22]On 3rd January 2013, the defendant filed an acknowledgment of service as a litigant in person, stating her intention to contest the claim and expressing her wish to remain an executor. She filed a witness statement in support, a copy of which can be found at pages 68 to 76 of hearing bundle section B. Although the copy in the hearing bundle is unsigned, the copy on the court file is indeed signed by the defendant and is dated 3rd January 2013. The defendant describes the nature of the estate at paragraph 3 and identifies the beneficiaries at paragraph 4. There are apparently four grandchildren in addition to the claimants and the defendant.[23]The defendant gives an overview at paragraphs 5 through to 7. Having referred to her mother’s will and the appointment of the defendant and her two sisters as joint executors, the defendant says that she oppose her sisters’ decision to remove her as an executor. She also opposes the suggestion of employing O’Neill Morgan Solicitors in the role of executors and the suggestion of employing Anthony Penman in that role. The defendant indicates that she is seeking all the costs of the court case, and for O’Neill Morgan’s work so far to be paid for by the claimants and not by the estate.[24]At the beginning of her evidence, the defendant corrected the dates in paragraph 8 of her witness statement. She indicated that the correct dates were February 2011 to 2012 for looking after her mother, although she added that she had stayed in Eastbourne for several weeks, and she had also spent a couple of weeks at Lucie’s home address and therefore her period of looking after her mother had not been throughout that period. The defendant’s evidence is set out at paragraphs 18 through to 35 and deals with the chronology of the matter. The defendant then responds to her sister, Lucie’s, witness statement. At paragraphs 36 through to 47, the defendant gives her reasons for opposing the court case.[25]There was a case management conference before District Judge Khan on 14th March 2013. The district judge allocated the case to the multi-track and gave further case management directions. These included (at paragraph 2) a direction that the claimants were, by 4 o’clock on 28th March, to send to the defendant a list of three proposed individuals to act as executor of the estate, to include:(a) Written confirmation of the willingness of such individuals to act;(b) The individual’s experience of probate matters; and(c) The individual’s fee structure. The district judge also gave the claimants time to file and serve any witness statements in response to the defendant’s witness statement by 4.00pm on 28th March 2013; and he directed that the matter should be listed for trial before a s.9 judge. The matter was duly listed on 18th April 2013.[26]The position of the defendant, who acted for herself before the district judge, is set out in directions, which were attached to her case summary and which can be found at B117. The defendant requested the court to remove the claimants from administering their mother’s estate as it was said that they had signed away their rights to administer the estate to O’Neill Morgan. The defendant requested that that firm be removed from any further administration of the estate as they were not selected by Lynda Seed, nor did they sign a contract with her, nor were they named in her will. The defendant said that she also wanted them removed because she had no confidence in their ability as they had not conducted themselves in a timely manner, they had withheld information which, as an executor, she was said to be entitled to, and they had misrepresented themselves to various financial institutions. That was a reference to certain letters which O’Neill Morgan had written to various financial institutions with which the late Lynda Seed had deposited funds. There are letters all dated 10th October 2012 (at C6 through to 9 of the hearing bundle) addressed to Investec Fund Managers Limited, the Pensions Policy Claims Department of Cooperative Investments, HSBC Bank plc and the Halifax. All four of those letters referred to Lynda Joyce Seed, gave account and (if appropriate) sort code numbers and said that O’Neill Morgan were writing to confirm that their above-named client had passed away, and enclosing a death certificate. They asked for details of the monies in their late client’s account. The defendant’s point was that the solicitors were not acting for, and had never acted for, her late mother, and they had no instructions to act on her behalf either.[27]The defendant also indicated that she asked the court to allow her to administer the estate as she had not signed away her rights as an executor and it was said that this would be less expensive than approving solicitors, who had run up a considerable, and excessive, bill thus far. She asked the court to reject any payment to O’Neill Morgan for any work they had done so far as Lynda Seed had not signed a contract with them, nor had she instructed them, and therefore she was not liable for their bill. The defendant asked the court to reject the suggestion of Anthony Penman in the role of executor as she did not consider him to be independent. It was said that if the court decided that Lynda Seed’s wishes were unreasonable, and that none of the named executors shall fulfil that role, then an independent person should be appointed; but she asked that all costs of the independent solicitor should be borne by the claimants and their solicitor, O’Neill Morgan. The defendant asked for her expenses for the court case to be borne by the claimants and O’Neill Morgan. Mr Duncan Heath (of counsel), who appears for the claimants, has made it clear that he no longer presses for Mr Penman to be the named appointed substitute personal representative.[28]Pursuant to the terms of District Judge Khan’s order to which I have made reference, on 25th March O’Neill Morgan wrote to the defendant, putting forward the names and charging rates of three independent executors. That letter is at pages B102 to 103 of the hearing bundle. The defendant responded on 27th March at B105. She rejected the proposed appointees, but indicated that she would be willing to step aside in favour of her uncle on the condition that her sisters paid all the costs to date and that any agreement would not prevent her from taking future action against O’Neill Morgan Solicitors. In that email, she made reference to observations of Lord Blackburn in the case of Letterstedt v Broers (1884) LR 9 App Cas 371. In a further email of 28th March 2013 (at D110 of the hearing bundle) the defendant made it clear that she was not prepared to accept O’Neill Morgan’s proposal of independent executors.[29]In an email, apparently dated 28th March 2013 (at D111), the parties’ uncle, Mr John Griffin, indicated that he had received a phone call from the defendant asking if he would become executor of his sister’s will. He said that he had subsequently had conversations with all of his nieces regarding himself acting as executor. He says that he would like to qualify his position. He says that he did indeed agree in principle to assist his nieces by acting as executor for his sister’s will as he had hoped that this might help in resolving the current situation. However, knowing the amount of work involved in disposing of the estate, his offer to assist was said to be a service from his professional consultancy company, Griffins Nest Limited; and even though he would offer a reduced rate for his family, the service could not be a free one, as indicated by the defendant. He also made it clear that he would only take on that role as long as all his nieces were happy with the situation. Following a subsequent conversation with Lucie, Mr Griffin understood that this was not the case as Tracie and Lucie felt that an independent executor was a more desirable solution. He said that he would make sure that he made that position clear to Jayne as soon as possible.[30]Also pursuant to District Judge Khan’s case management order, evidence in reply to that of the defendant was served. There was a further witness statement from Lucie Riley, the first claimant, (at pages B121 through to 126) and a further confirmatory witness statement from Tracie Seed (at B127 to 128), in which she expressly clarified that she had received £1,000 from her late mother and that that had been a gift. Those witness statements are undated, but they were clearly written and signed at some point during the course of March this year.[31]That is the extent of the evidence before the court. At trial, Mr Duncan Heath (of counsel) appeared for the claimants. He had produced a written skeleton argument, dated 5th June 2013, which I have pre-read. The defendant had also produced a detailed written skeleton, also dated 5th June 2014. Again, I had pre-read that document before the trial began. The trial began at shortly after 10.30 yesterday, Monday 10th June 2013. Mr Heath opened the case for about an hour, going through the chronological correspondence in some detail. The defendant, who appeared as a litigant in person, then addressed me for about 20 minutes, drawing my attention to certain additional documents and emphasising particular points in documents to which Mr Heath had already drawn my attention. She also addressed me upon s.41 of the 1925 Act and s.50 of the 1985 Act. I have already referred to those sections.[32]I then heard from the first claimant, Mrs Lucie Riley. She gave evidence from about 12.00 noon yesterday until about 3.30, with the usual hour’s break for lunch. In all, she gave evidence for about two and a half hours, of which about two hours and 15 minutes was cross-examination by the defendant. The defendant’s cross-examination had clearly been prepared in advance. It was rational and structured, and the cross-examination was firm but polite. As she was giving evidence, I formed the view that Lucie Riley was basically an honest witness seeking to do her best to assist the court. However, it is quite clear that there is a considerable degree of longstanding ill will and friction between herself and the defendant which leads her - I have no doubt genuinely - to see matters concerning that relationship her own way. It is Lucie Riley who took the lead in instructing O’Neill Morgan and has taken the lead in this litigation.[33]I then heard from Tracie Seed who, after a short break so that Lucie could consult with her sister and co-claimant before the latter went into the witness box, gave evidence from 3.45 to about 4.35. I have no doubt that she has taken a backseat in these matters to her sister, Lucie. Again, I am satisfied that Tracie was a witness who gave her evidence honestly and was trying to assist the court. Again, it seems to me that there is no love lost between Tracie Seed and her sister, Jayne.[34]It is appropriate at this point that I refer to certain salient features of the evidence of the two claimants. I deal first with Lucie. Lucie explained that she had first contacted BJ McKenna & Co after the defendant had, according to Lucie, refused to give the claimants a contact address. The object of seeking that was to see how the claimants could go forward and administer the estate. That telephone conversation, according to Lucie, took place on 18th September. According to Jayne, it took place the following day, 19th September, which was a Thursday. Those dates should be viewed against the background of the parties’ mother having died on 7th September and the funeral having taken place on 14th September, and so less than a week later.[35]It is important to bear in mind that the deceased at the time of her death was living in the North West, in Northwich, and that the claimants also live in the North West, whereas the defendant was then living a slightly nomadic existence in the Eastbourne area. As the defendant said, and as the claimants stressed on a number of occasions, there is some 300 miles difference between them. It is the defendant who is out of the loop geographically so far as the claimants and the location of the principal assets of the estate are concerned.[36]Lucie explained that that telephone conversation on either 18th or 19th September - the date does not really matter - was the only telephone conversation that they have had since their mother passed away. Lucie later said that her sister had just refused to give them a correspondence address. She said that the defendant had not explained that she was moving, but had said that she did not have an address. Lucie was adamant that in the telephone conversation she had given her sister three options. She could either come up north and help the claimants administer the estate, or they could use a third party, or they could leave the assets of the estate sitting there for some years. Still later in her evidence, she said that the defendant had not given any explanation for not giving a correspondence address. She had simply refused to provide one.[37]It is clear from an email that the defendant sent to Mr McKenna of BJ McKenna & Co on Monday, 24th September, just after 6 o’clock in the evening, that the defendant had had a telephone conversation with Mr McKenna on Thursday, 20th September. Lucie said that the interview which she had arranged for herself and Tracie with BJ McKenna & Co, which was the first meeting they had had, had taken place the day after that telephone call, on Friday, 21st September. Mr McKenna appears to have been assisted by a solicitor called Victoria Reid. Lucie related that, having given Mr McKenna the whole story, he had said that there were three options. He was said to have advised what avenues they could go down and that that did not necessarily involve removing the defendant as an executor. At that point, Lucie indicated that the tone and aggression of the conversation which she had had with her sister on 18th or 19th September had not been one that she wanted to repeat.[38]Lucie said that on the Tuesday of the following week, and thus the day after the defendant’s email of 24th September, Victoria Reid had said that Mr McKenna was refusing to deal with the case. It was reported to her that that was because of the abrupt nature of the communication which he had said that he had had with the defendant. Certainly, the email itself of 24th September cannot in any way be described as abrupt; but it is quite clear from the terms of that email that there must have been some suggestion during the defendant’s telephone conversation with Mr McKenna that her removal as an executor had been raised as in the course of the email the defendant says:
“When we spoke over the phone, you told me that yourself and my sisters were considering removing me as an executor from the will. I have the following questions. Who do you envisage will pay for any court application to remove me as an executor as I will contest any application to remove me as an executor? Are you and my sisters willing to cover any legal expenses I might incur?”
If Lucie is correct in saying that her first meeting with Mr McKenna was on Friday, 21st September, then clearly Mr McKenna must previously have had some telephone conversations with Lucie in which the notion of removing the defendant as an executrix had already been raised. In cross-examination, Lucie accepted that there had been telephone conversations before her meeting with Mr McKenna on Friday,21st September.[39]In the course of her cross-examination, Lucie said that the claimants had already gone to BJ McKenna & Co because they could not communicate with the defendant. She said that going to BJ McKenna & Co had seemed a very simple and inexpensive way to administer their late mother’s wishes and her estate. Still later in her cross-examination, just after the lunch adjournment, Lucie said that communication with the defendant was very difficult and that she had wanted all communications to be through solicitors. Towards the end of her cross-examination, later that afternoon, Lucie said that, “Communication with you is impossible, Jayne.” Still later during the cross-examination that afternoon, Lucie said, “We [by which she meant she and Tracie] knew prior to mum’s passing that you were going to be difficult to deal with.”[40]In re-examination, Lucie said that the defendant, Jayne, seemed to her to have been very much upset that her mother had chosen to take Lucie and Tracie and their families on a cruise shortly before her death. She stressed that it was her mother who had wanted to go on the cruise because she was then unable to fly anywhere and that she had thanked Lucie and Tracie for arranging it. Thus, it is clear to me that by the time of the parties’ late mother’s death, there was a considerable degree of friction and ill will between the first claimant and the defendant, and that the first claimant had already formed the view that she would experience difficulties in dealing with the defendant as a co-executrix.[41]That was confirmed by Tracie’s evidence. When asked about the arrangements for transport to the funeral of their late mother, Tracie said that it was felt that it was probably best for the defendant to travel in a separate car from the claimants. That was said to be “because of the contention between us.” Tracie made it clear that she had not spoken to her sister, Jayne, between the death of their mother on 7th September and the funeral on 14th September. She also told the court that this was the first time that they had spoken since their mother had passed away. She had not replied to texts from the defendant, considering it better to leave it to her sister, Lucie, to do so. Later she said that she had not wanted to have any contact with the defendant and that was why she had not contacted the defendant about instructing or retaining O’Neill Morgan. Tracie had thought it better for only Lucie to have contact with the defendant.[42]In re-examination, Tracie said that she did not think that the three sisters could continue to work together as executors, “otherwise we wouldn’t be here in court now.” She did not want Jayne to be the sole executor because she felt that nothing would be sorted out and the matter would go on for years. They would have arguments and they would be back in court.[43]The court adjourned on Monday afternoon at about 4.35 after Tracie Seed’s evidence had concluded. The hearing resumed this morning shortly after 10.30. The defendant went into the witness box and confirmed her witness statement, subject to minor corrections. She gave evidence for about an hour and a half in total, ending at 12.15. Of that, about an hour and 15 minutes was cross-examination. I found the defendant to be forthright and open in her evidence. Again, I consider that she was doing her best to be honest and was seeking genuinely to assist the court. She made a number of appropriate concessions in cross-examination. She explained both why she had formerly pursued allegations of loans to her two sisters and why those allegations had now been withdrawn and were no longer being pursued. She also acknowledged that she now accepted that her mother’s verbal expressions of wishes were not of legal effect, although she had considered them to be moral issues at the time.[44]She was cross-examined about an incident that had taken place at her mother’s home in Northwich when her mother was still in a nursing home in April of 2012. Both Lucie and Tracie had been cross-examined about that and had given evidence consistent with each other that it was a violent episode where it was the defendant who had initiated the violence. The defendant had sent a text message on 15th April, the text of which is to be found at D1 of the hearing bundle. The defendant maintained that that was the true position. She accepted that that version of events had been disputed in a text in response from Tracie at the time, which the defendant had deleted and so was unable to place before the court. The defendant said that the text from Tracie, and subsequent text messages, had been deleted simply as part of an exercise to clear out her text box so that it could continue to receive text messages. I do not find it of real assistance in addressing the issues I have to decide in this litigation to make detailed findings of fact as to what happened. The defendant herself said this of the incident. “We were all extremely frustrated. It was six of one and half a dozen of the other.” The sisters had been aggressive to her, but she (the defendant) was willing to say that “we were all to blame for the situation.” The situation had become overheated because they were all frustrated. She said that she had assaulted her sisters in self-defence after they had assaulted her.[45]I had previously asked what had led to the incident. She said that Lucie had phoned the defendant a few days before and had said that her mother was terribly ill. The defendant had been supposed to be moving into her mother’s apartment, but after arrangements had been made for that, Lucie had then contacted the defendant to say that their mother had up to another 18 months to live and that she, Lucie, would call the defendant when they needed her. The defendant’s attitude had been that she had wanted to look after her mum. Essentially, she said that the argument had been over who should look after their mum. As I say, I do not find it necessary, in order to resolve the present dispute, to find who was responsible for initiating what is accepted on both sides to have been a violent incident. Even on the defendant’s case, she accepts that she assaulted her sisters although in self-defence, after she says that they had assaulted her. It is unprofitable for me to enter into the rights or wrongs of that. Suffice it to say that it seems to me that incidents of that kind were responsible for the attitude which both Lucie and Tracie adopted by the time of their mother’s death that they would have difficulties in working with their sister over the administration of her estate.[46]Another issue which was put to the defendant in cross-examination was the conversation on either the 18th or 19th September when Lucie had asked for a correspondence address. The defendant accepted that she had not given it. She explained to my satisfaction why she had not done so. It was because she was in the course of moving and, for reasons which I accept, she did not know the full and exact new address. I also accept the defendant’s evidence that she did explain that to Lucie at the time. However, I am prepared to accept that Lucie did not catch the explanation and was of the view that her sister was just being difficult, something which she had already anticipated might be the case. The defendant accepted that both had been abusive towards each other.[47]In the course of her evidence, she told me that in that conversation Lucie had said that they had been to several other solicitors, as well as BJ McKenna. That was not something that had been accepted by Lucie. After the defendant had concluded her evidence, and during the course of a break to deal with another matter, Mr Heath quite properly, and consistently with his duties to the court, did indicate to the court that a quote had in fact been obtained from the Cooperative in the sum of some £11,900-odd for administering the mother’s estate. To that extent, it seems to me that the defendant’s evidence has turned out to be partly correct. Again, it does not seem to me to be necessary to make detailed findings of fact as to precisely what was said at various times to whom. I am entirely satisfied that Lucie and Tracie had decided that it would be difficult to work with their sister, Jayne. That conditioned the way in which matters proceeded. Lucie and Tracie instructed first BJ McKenna and then O’Neill Morgan without reference to their sister. I am entirely satisfied that they took the view that the involvement of a firm of solicitors would be the only way in which they could deal with their sister in the administration of the estate. I am satisfied that it was that decision that was then productive of a further deterioration in the relationship between the three sisters.[48]On 2nd October, the defendant sent a text message to Lucie and Tracie which is reproduced at D3. The defendant said that she needed to know the name and address of the solicitor the two sisters had moved their mother’s estate to. She also needed permission from them to get a copy of her mother’s will. She asked for the details to be sent as soon as possible. She received no reply from Tracie for the reasons I have given. The text reply from Lucie read:
“We’ve tried to communicate with you on several occasions. Unfortunately, you have been uncooperative. The solicitor will contact you directly. Lucie.”
The defendant’s text reply to Lucie on the same day read:
“I hope you have it all logged.”
[49]The reality is that there had been no attempt to communicate on several occasions. Lucie’s own evidence was that there was just the one telephone call on 18th or 19th September and there was no contact between Tracie and the defendant at all. It would appear to have been on 4th October that O’Neill Morgan were formally instructed. According to Lucie, that had been due to a delay in identifying whether it was O’Neill Patient or O’Neill Morgan that would be taking the matter over from BJ McKenna & Co, but suffice it to say that O’Neill Morgan were instructed on 4th October. That appears from paragraph 5 of the claimants’ case summary for the case management conference at B104.[50]By then the defendant had, of course, sent her email to Mr McKenna of 24th September giving her address at 64a Lottbridge Drove. She sent a further email to Victoria Reid at BJ McKenna on 4th October at CD4 referring to a telephone call she had had with her on 2nd October and making what she described as a fourth request, having made two previous requests by telephone and one by email for a copy of the will and asking for it to be sent to her again at the Lottbridge Drove address. Victoria Reid replied promptly by email on 4th October saying that a copy of the will had been posted to the defendant that day; and the relevant letter appears at D6.[51]On the following date, 5th October (at D7), BJ McKenna wrote to the defendant saying that they were no longer instructed in relation to their late mother’s estate. The letter said that all three of them as executors would need to be in agreement for the original will to be released to O’Neill Morgan Solicitors. An email response was sent by the defendant to Victoria Reid on 8th October (at D8). On the same day there were various text messages sent by the defendant to Lucie, to which she variously responded. Essentially, the defendant was asking her sister who the solicitor in question was. The response was Michael Morgan. The defendant made it clear that they were only representing Lucie and Tracie.[52]It was on 9th October that O’Neill Morgan sent their first [text?] to the defendant. That text made it clear that they had been instructed by Lucie and Tracie. The writer, Miss Breakspear, passed on the firm’s sincere condolences for the defendant’s loss and asked for the defendant’s confirmation that she wished O’Neill Morgan to act for her also. That led to various emails passing, including one from the defendant on 15th October (at D14) stating her belief that she was entitled to receive a list of all of her mother’s bank accounts and assets. Miss Breakspear responded to that email promptly, and within about 40 minutes, giving details of the financial institutions with which Lynda Seed had had accounts, but not the account numbers or sort codes. It is quite clear from the letters of 10th October (at C6 through to 9, to which I have already made reference) that by then Miss Breakspear already had the account numbers.[53]A further email from Miss Breakspear at about ten to four on the afternoon of 15th October (at B18) asked for the defendant to provide a contact number so that they could discuss the issues over the phone and Miss Breakspear could answer any queries that the defendant might have. Miss Breakspear felt that that would be easier than corresponding via email and would enable Miss Breakspear to address the defendant’s concerns fully. The defendant provided her phone number at about 10.30 on the following day, 16th October (at D19). There was clearly a telephone conversation shortly thereafter. I have no evidence from Miss Breakspear to know what was said. What the defendant says in her timeline at B44 is:
“I received a phone call from Francesca shortly afterwards. I asked her for the account details and she refused. I then ended the conversation.”
[54]The defendant followed that up with an email (at D20) at about 10.59 on the morning of 16th October, which read:
“Thank you for taking the time to phone me. However, due to your refusal to give me the details of my mother’s account at the Halifax, I don’t feel that I’m prepared to let you represent me. As the situation stands, you are representing my sisters, Tracie and Lucie, and as you haven’t had any confirmation that you are also acting for me then you should not be accessing my mother’s accounts or putting any blocks onto the accounts. As a named executor, I have had advice that I am legally entitled to my mother’s account details and failure to disclose those details is a criminal offence. I am formerly requesting those details.”
[55]At D21, at ten to one that afternoon, Miss Francesca Breakspear responded:
“Further to your email of today’s date and our telephone conversation, you have confirmed that you are not willing to instruct us to deal with the probate of your late mother. With this in mind, I would suggest that you seek independent legal advice from a solicitor of your choosing.”
[56]As I say, I have not had any evidence from Miss Breakspear; but what appears to have led to an irretrievable breakdown in relations between the defendant and O’Neill Morgan was the refusal of Miss Breakspear to provide the defendant with details of her mother’s account at the Halifax. I have no evidence as to why she did so refuse. At the end of her cross-examination, and after she had been re-examined, I asked Lucie about that and her response was:
“I imagine that Jayne kept asking Miss Breakspear for information, but she was not prepared to pay them. She wanted the information, but was not prepared to pay for the provision of the information.”
Lucie speculated that it might have been because Jayne had refused to sign an authority for O’Neill Morgan to act on her behalf and to work together with the claimants.[57]The position appears to have been that it was this that really led to the breakdown in relations between the defendant and O’Neill Morgan. There were various text messages sent by the defendant to Lucie on 16th October, in the evening after that conversation and exchange of emails. They are to be found at B22. The defendant was asking Lucie to forward the account number for her mother’s Halifax account. Lucie’s response was that everything was with the solicitor and nobody could do anything until the will was released and grant of probate done, but the defendant had refused to sign the release. She suggested that the defendant should communicate with the solicitor. The defendant said she was not going to sign over what her mum wanted and expressed in her will and said that Lucie should be ashamed. Lucie said that the solicitors were not asking the defendant to do anything but sign the release of the will as Tracie and she (Lucie) had done. That was so that they could execute mum’s wishes as per the will. The defendant said:
“More games. I’m legally entitled to the information and I’m giving you two days to supply it. After that, I’ll take action against you and your solicitor.”
Lucie’s response was:
“The solicitor would have made it very clear what was legally required to do in order for all executors, Tracie, you and myself, to execute mum’s wishes. If you’ve not understood what was required I suggest you contact them directly so that they can explain clearly to you your misunderstanding.”
[58]There was an exchange of text messages on 28th October (at D24). At about a quarter past six, the defendant texted Lucie to say that she had been to several banks, including Lloyds TSB, and had her mum’s statements for the previous year. It seemed that somebody had withdrawn money from her account, the account number being given, after she had passed away. “As this is fraudulent activity, do you, Lucie, know who withdrew the money before I approach the police?” At almost 10.30 that same evening of 28th October (at D23), Lucie responded:
“It’s a shame you never put as much time and effort in the last 20 years, more importantly in the last twelve months, into seeing, visiting and caring for my dying mother as you put into trying to ascertain how much money is in the accounts for your inheritance. It shows your true character and colours. Please stop your continued harassment via text and emails, telephone etc. You have the solicitors’ details who once again I request you to go through to obtain all the information. Please do not contact me or my sister again.”
[59]The defendant responded at about ten to nine the next morning, 29th October (at D25). She acknowledged that she had not seen her mother as much as Lucie over the 20 years, but she had been there in the last twelve months and she did do a lot, even though people did not recognise it. She said that she would have been there more if everyone had let her. The situation was said to be now that the defendant was going to look at all of her mother’s assets and then put a proposal to Lucie and Tracie and it was up to them to decide on whether it was fair or not. She said that she was going to send the proposal directly as she did not recognise the claimants’ solicitor.[60]Miss Breakspear emailed at 11.36 that morning referring to the above matter and previous correspondence. I interpose to observe that there had been no exchanges of emails or correspondence between the defendant and the solicitor between 16th and 29th October, almost two weeks. Miss Breakspear’s email went on to say that she had taken her client’s instructions and she could confirm that she was prepared to send the defendant all the details that the solicitors had relating to the bank account and any additional information regarding the balances as at the date of death for the defendant’s consideration. She asked for a correspondence address so that the solicitors could send the documentation to her. She said that she would be grateful if the defendant could direct any further correspondence to herself rather than her clients.[61]I infer from that statement that Miss Breakspear had indeed spoken to her client, Lucie, on the morning of 29th October, and after Lucie would have received the defendant’s text at ten to nine that morning, before sending the email of 29th October. The defendant responded on 1st November (at D27) sending her current address and saying she would like to receive all of the information available. That was duly sent on 1st November. The defendant invited the court to find that the detailed financial information accompanying the letter of 1st November had been sent in response to her email [and?] texts to Lucie. I am prepared to draw that inference. I do so because of the silence that had existed since the last email exchange between the defendant and Miss Breakspear on 16th October. Something must have prompted a further communication from the solicitors; and I find that it was the text messages that Lucie had received from her sister.[62]The defendant responded to the information by email on 5th November (at D68). She said that it was with great disappointment that she had read Miss Breakspear’s letter of 1st November as she still had concerns about her mother’s estate and wishes. It seemed that the only solution that the solicitors wished to consider to her concerns was legal action against the defendant. She made it clear that if O’Neill Morgan or the claimants did take legal action against her then she expected that all costs would have to be paid by themselves, and not by the defendant, out of her mother’s estate. It was said that O’Neill Morgan had no respect for the wishes, choices and decisions that her mother had made, and neither had Lucie and Tracie. She made it clear that she would not be signing for the release of the will. She made reference to Tracie admitting to the £1,000 loan she had received and which her mother was said to have told the defendant was a loan to buy her daughter a laptop for her birthday. Lucie was also asked to declare her mother’s assets. There was no further communication from O’Neill Morgan, or either of the claimants, from the 5th November email until the letter before claim two weeks later on 19th November.[63]I am satisfied that upon receipt of the email from the defendant of 5th November the claimants and O’Neill Morgan took the view that an impasse had been reached between the parties. That was acknowledged by the defendant herself in her email response to the letter before claim of 20th November (at D75).[64]That summarises the evidence in the case. It is unnecessary for me to summarise what is said in the written skeleton arguments of Mr Heath for the claimants and the defendant in person. They are available on the court file. In his opening, Mr Heath had made it clear that this was a case where the executors were simply not capable of working together and the court did not need to attribute fault to any of the parties. After the defendant concluded her evidence at about 12.15, there was a short break. That was to enable Mr Heath to take instructions on whether he would seek to apply to put certain further evidence in. In the event, he elected not to do so. I also broke to allow the defendant an opportunity to gather her thoughts after she had concluded her evidence and before addressing me.[65]The defendant did address me for about 25 minutes between 12.35 and about five to one this morning. She stressed that her mother had given both claimants copies of her will so that they had had the opportunity to read them and object to what their mother had done. It had been the claimants’ evidence that Tracie had not read the will, but had relied upon what Lucie had told her about it, and that Lucie had only read the will some time shortly before their mother’s death. The defendant referred to the fact that both claimants had said in evidence that their mother had not asked them to be executors, nor had she discussed the terms of the will with them. The defendant contrasted that with her own position. She said that her mother had asked her to be an executor. She accepted that someone needed to deal with her mother’s properties, but the defendant said that she would and could fulfil that role. She was merely wishing to fulfil the wishes of her late mother.[66]She emphasised that O’Neill Morgan had never sent her any contract or their terms and conditions. The defendant said that she had tried to resolve the situation on several occasions, but that both the claimants and O’Neill Morgan had been obstructive. She said that Lucie had known the reasons why she was unable to give Lucie her address at the time of the 18th or 19th September telephone conversation. She submitted that she had not been informed of the appointment of O’Neill Morgan and that the contract between the claimants and them was unenforceable and had been carried out in an unfair manner. It seems to me that the defendant may be acting on a misapprehension. Certainly, there had been no retainer of O’Neill Morgan by all three appointed executors. O’Neill Morgan were acting for, and only for, the two claimants, and not for the defendant. That means that they were not acting for the estate or for all three executors; but that does not invalidate the retainer of O’Neill Morgan by the two claimants alone.[67]The defendant said that there was evidence of friction and hostility between herself and her two sisters prior to her mother’s passing. However, the defendant did not believe that that was a sufficient basis for her removal because her conduct as an executor had never been put to the test. Her sisters had sought to remove her as an executor from the outset. I accept that submission from the defendant. The defendant said that her sisters had made wild allegations about her character, but that was irrelevant. Again, I accept that submission. It is for that reason that I find it unnecessary to make detailed findings of fact about the incident in April of 2012. Still less do I consider it to be relevant to make any findings of fact about relations between the defendant and the deceased herself.[68]In the course of her witness statement, Lucie had made an allegation (at paragraph 10) that her sister had been verbally abusive to staff at Tabley Hall Nursing Home where her mother resided. Lucie, fairly in cross-examination, accepted that all of that was hearsay. It was disputed by the defendant. It is unnecessary, and it would not be appropriate, for me to make any finding in relation to that. The fact is that the parties’ mother had chosen to appoint all three daughters as her executors in a will that had been made as relatively recently prior to her death as August 2011. She had never sought to revoke that will. It does not seem to me to be relevant to make any findings in relation to the relationship between the defendant and her mother.[69]The defendant submitted that she was simply looking to fulfil the role that her mother had asked her to do by appointing her as one of her executrixes. She submitted that the issue of costs had been a motivating factor in the case. She felt that O’Neill Morgan had not spent their time wisely. Had information been provided to the defendant at the outset, she said that the time and expense of this court case could have been avoided. It seems to me that there may be some justification in that. I have already indicated that, for reasons that were not validly explained to me, O’Neill Morgan had refused to provide the defendant, who was after all an executrix, with details of the Halifax account, even though they had already got it and had already written to the Halifax, purportedly on behalf of the deceased, seeking information.[70]The defendant continued to request that she remain an executor of her mother’s estate, and then she reiterated her submissions as to costs (as previously recorded). Finally, she said that the claimants had passed on their role to O’Neill Morgan and so had technically withdrawn as executors. As against that, the defendant said that she had intermeddled in the estate and was willing to accept the role of executrix. I reject the submission that the claimants have in any way disentitled themselves from assuming the role of executors. What they were doing was to appoint O’Neill Morgan to act as solicitors for the estate. That did not involve an abdication of their personal responsibility as executors.[71]The court adjourned for lunch and, after it returned at 1.55, Mr Heath addressed me briefly in closing for about 20 minutes. He submitted that there were three options. The first was to keep all three sisters in place as executors. Second was to remove the claimants and allow the defendant on her own. The third was to remove all three. He reminded me of the applicable test as stated at paragraph [62-15?] of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate[(20th ed)?]:
“…if the administration has come to a standstill because relations between the personal representatives have broken down, or relations between the representatives and the beneficiaries have broken down, the court will ordinarily remove the personal representatives and appoint new ones to enable the administration to be completed. It is not necessary to establish wrongdoing or fault by the personal representative to obtain his removal. If, for whatever reason, (such as clash of personalities, or the lack of confidence in the personal representative by the beneficiaries, even if unjustified) it has become impossible or difficult for the administration to be completed by an existing personal representative, then an order for his removal will usually be made.”
Mr Heath pointed out that that passage had been cited with approval by Mr Richard Snowden QC, sitting as a Deputy Judge of the Chancery Division, in the case of Angus v Emmott [2010] EWHC 154 (Ch) at paragraph 108.[72]Mr Heath submitted - and I accept - that a clash of personalities is in itself sufficient reason for the removal of a personal representative. He said that the claimants were seeking to involve someone impartial and independent because they thought that this might assist. It was said that one of the reasons that the executorship between the three sisters had not worked was because of the allegations that were being levelled at Tracie and Lucie. He submitted that they were evidence of the defendant’s inability to deal objectively with this estate. He submitted that it had been unreasonable to refuse to accept the evidence that the £1,000 paid to Tracie by the deceased had been a birthday gift. He cited this as an example of the inability on the defendant’s part to deal objectively with the estate. He submitted that the defendant had never expressly and properly withdrawn the allegations in relation to the alleged loan to Lucie and its non-repayment in her correspondence. He submitted that it was quite clear that the defendant was suspicious of any independent executor. He emphasised that if the defendant remained in office as executrix, she would remain under a duty to consult with her sisters as co-beneficiaries and that that course would be fraught with difficulty.[73]Mr Heath then sought to address the defendant’s points in closing. First, he said that:
“Had there not been the issue as to details of the deceased’s bank accounts not being provided promptly, we would not be here in court today.”
He said that that showed the fragility of the relationship between the three sisters. Secondly, he submitted that the deceased’s choice of executors had not been uninfluenced by Jayne. She had known about, and had discussed the terms of the will with her late mother. That was clear from Jayne’s own evidence. In any event, Mr Heath submitted that the choice of executor by the testatrix was not the overriding consideration. The deceased had been trying to treat all three of her daughters equally. Either all should stay, which would be deeply unattractive, or all should be removed as executors. Thirdly, Mr Heath submitted that the costs of appointing an independent executor would be a small price to pay. It would reduce any further delay in the administration of the estate and was the only way the court could be confident that the estate would be administered without further delay or recourse to the court. Fourthly, and finally, Mr Heath submitted - and I accept - that there is no legal basis for the submission that by involving solicitors in the administration of the estate, the claimants had waived their right to a grant of probate.[74]Those were the submissions. I have already indicated that the law that I should apply is that set out in Williams, Mortimer and Sunnucks at [62-15?]. I have been referred also to observations of Mr Justice Lewison in the case of The Thomas and Agnes Carvel Foundation v. Carvel [2007] EWHC 1314 (Ch), reported at [2007] 4 All ER 81. In the course of her written skeleton, the defendant referred to a passage in Mr Justice Lewison’s judgment at paragraph 38 where he had referred to a submission that there had been considerable hostility between Pamela and Mr Ross. Mr Justice Lewison said that he did not consider that that mattered. What mattered was that they represented the same estate, whether they did so amicably or at each other’s throats. However, it is also necessary to bear in mind what Mr Justice Lewison said at paragraphs 53 to 55:
“53. It is plain that there is intense hostility between Pamela and the Foundation. Pamela is partisan as between the Foundation on the one hand and Carvel-Florida on the other. So far as the Foundation is concerned, the hostility is, in my judgment, grounded on the way in which the trusts have been administered. 54. Lord Blackburn cited as the guiding principle to the jurisdiction to remove trustees as being "the welfare of the beneficiaries". Mr Barlow submitted: Pamela has wholly disregarded this principle. Her every act has been calculated to promote her own personal interests and to prejudice those of the Foundation. She is in a position of irreconcilable conflict with the principal beneficiary of Agnes' estate and her hostility to the Foundation renders it quite impossible for her to fulfil her fiduciary duties. Her position as personal representative is untenable. She should be removed.”
Mr Justice Lewison agreed and he ordered Pamela to be removed as personal representative. Mr Justice Lewison’s earlier observations (cited by the defendant) have to be read in the light of his later observations. What it all does is to emphasise that this is a particularly fact-sensitive jurisdiction that the court is being asked to exercise.[75]The defendant submitted in her written skeleton that the authorities have established that friction and hostility were only grounds for the removal of an executor if it affected the execution of the estate. Reference was made to Lord Blackburn’s observations in Letterstedt v Broers and also to the case of Scott v Scott [2012] EWHC 2397 (Ch). That is probably the most recent authority in this area of equitable jurisprudence. It was a decision of His Honour Judge Behrens sitting as a Judge of the Chancery Division in the Leeds District Registry. At paragraph 1, Judge Behrens said that the dispute was an unfortunate one between two brothers, Andrew and Martin, concerning a trust created in 1991 by their mother. Andrew and Martin were currently the sole trustees. Together with Simon they were the principal beneficiaries under the trust although there were other discretionary beneficiaries. At paragraph 138 Judge Behrens cited from the earlier decision of Mr Justice Newey in the case of Kershaw v Micklethwaite and Others [2010] EWHC 506 (Ch). Judge Behrens recorded that Mr Justice Newey had made a number of observations which seemed to Judge Behrens to be relevant to the present case:
“(1) In paragraph 10, Newey J had considered the relevance of the tasks to be carried out by the trustee. After citing a further passage from the judgment of Lord Blackburn he said: I infer from that that Lord Blackburn would have regarded the fact that a trustee's functions were "of a simple character" as weighing against his removal. (2) In paragraph 11 Newey J had elaborated on the relevance of friction between an executor and a beneficiary: I do not think that friction or hostility between an executor and a beneficiary will, of itself, be a good reason for removing the executor. On the other hand, a breakdown in relations between an executor and a beneficiary will be a factor to be taken into account, in the exercise of the court's discretion, if it is obstructing the administration of the estate, or even sometimes if it is capable of doing so. Mr Child himself accepted in the course of argument that for a breakdown in relations to warrant an executor's removal, the breakdown must at least have the potential to cause difficulty in the administration of the estate. (3) In paragraph 14 (after further citation from Lord Blackburn) Newey J had elaborated upon the relevance of the testator's choice of executors: I agree with Mr Barlow that a testator's choice of executors is capable of being of relevance, if on no other basis then because the testator may be expected to have had knowledge of the characters, attitudes and relationships involved which a court will lack. (4) In paragraph 22 Newey J had made the point that it was not every breach of trust that would justify the removal of an executor: Even if things could have been handled better in certain particular respects, there is, in my judgment, no scope for any substantial criticism. In any case, as Lord Blackburn said in Letterstedt at pages 385 to 386, "… it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees", which will induce Courts of Equity to remove a trustee (or, I would add, an executor).”
I infer from that that Lord Blackburn would have regarded the fact that a trustee's functions were "of a simple character" as weighing against his removal. I do not think that friction or hostility between an executor and a beneficiary will, of itself, be a good reason for removing the executor. On the other hand, a breakdown in relations between an executor and a beneficiary will be a factor to be taken into account, in the exercise of the court's discretion, if it is obstructing the administration of the estate, or even sometimes if it is capable of doing so. Mr Child himself accepted in the course of argument that for a breakdown in relations to warrant an executor's removal, the breakdown must at least have the potential to cause difficulty in the administration of the estate. I agree with Mr Barlow that a testator's choice of executors is capable of being of relevance, if on no other basis then because the testator may be expected to have had knowledge of the characters, attitudes and relationships involved which a court will lack. Even if things could have been handled better in certain particular respects, there is, in my judgment, no scope for any substantial criticism. In any case, as Lord Blackburn said in Letterstedt at pages 385 to 386, "… it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees", which will induce Courts of Equity to remove a trustee (or, I would add, an executor).”[76]In the present case, I bear in mind, first, that the duties of the executors are of a simple character. They are simply to realise and then distribute the assets in the estate of the deceased in accordance with the terms of her will. Secondly, I have to bear firmly in mind that it was the deceased who chose to appoint her three daughters as her executrices. That is a factor that must weigh strongly with me. Thirdly, I have to bear in mind that friction or hostility of itself is not a good reason for removing an executor. The observations of Mr Justice Newey (cited by Judge Behrens) and indeed also the observations of Lord Blackburn are directed to the situation of friction between an executor and a beneficiary. Here, the position is rather more than that. The friction is between two of the three executors and the third, and also two of the three beneficiaries and the third residuary beneficiary. This is not just a case of friction between those beneficially entitled to the estate or trust fund. It is a case of friction between the executors and trustees themselves and they are also the three beneficiaries.[77]Bearing those observations in mind, I go on to consider the actual decision of Judge Behrens in the Scott v Scott case. At paragraphs 139 to 144, Judge Behrens dealt with the application to remove Martin. He said that there was undoubtedly hostility and friction between Martin and Andrew, but at paragraph 142 he said that it was clear from the authorities that hostility between Andrew and Martin was not of itself sufficient to justify Martin’s removal, although it was a factor if it was hindering the administration of the trust or might do so. Having identified various relevant factors, Judge Behrens indicated that he rejected the submission that the breakdown between Andrew and Martin had directly impeded the running of the trust and would do so in the future. In those circumstances, he declined to order Martin’s removal.[78]Judge Behrens then went on to address the removal of Andrew at paragraphs 145 through to 147. He said that he took a different view as regards Andrew. In his view, Andrew’s hostility to Martin had had, and was continuing to have, a deleterious effect on the administration of the trust. He exemplified that, and he indicated that he would be content to appoint Simon in place of Andrew if he was still willing to be a trustee. He indicated because Simon and Martin were the principal beneficiaries and there will be an obvious potential conflict of interest between their interests and those of Andrew that his provisional view was that there ought in addition to be an independent professional trustee who would be in a position to ensure that decisions that were taken were in the interests of the beneficiaries as a whole. He was conscious that the appointment of such a trustee would add to the expense of administering the trust, but it might have the effect of reducing the potential for future litigation over the conduct of the trust. At the resumed hearing, he indicated that he would welcome further submissions on this point and he was also interested in Simon’s views.[79]What I derive from that authority is that it is not sufficient that there should be hostility between co-trustees or co-executors. The real question is whether the breakdown between them has directly impeded the administration of the estate or the running of the trust and whether it will do so in the future. For the reasons I have given, I am entirely satisfied that here the fault is by no means all that of the defendant herself. I am satisfied that the claimants had formed the view at or about, if not before, the time of their mother’s death and funeral that they would be unable to work with the defendant as a co-executrix.[80]I am entirely satisfied that there is a breakdown in relations between them. There is friction and hostility. There is, as the defendant herself recognised in her letter of 20th November, an impasse. The sad position is that even though it is now some nine months after their late mother’s death, the parties have not yet even been able to take out a grant of probate in relation to her estate. I can see no way in which that situation can be satisfactorily addressed for the future if all three of them remain as executors. I bear in mind that it was their late mother who appointed all three of her daughters to act as executors. The court should be reluctant to override her testamentary wishes. That is a factor that was rightly stressed by the defendant. However, the reality is that the three cannot work together. Therefore, at least one or more of them has to be removed.[81]Would it be right in those circumstances to allow Jayne to remain as executor and to remove the two claimants? It seems to me that that would be no more just or equitable than it would be to remove the defendant and to leave the claimants in place. With great regret, I can see no alternative for the future safe administration of this estate than to remove all three of the sisters as executors and appoint an independent solicitor as personal representative in their place. For that reason, I uphold the claimants’ claim, to the extent of removing all three of the present executors, and I will appoint an independent executor in their place.[82]At the moment, all the information I have as to suitable candidates is contained in the letter to which I have already made reference at D102. The suggestion by the defendant of the parties’ uncle, Mr Griffin, does not seem realistic in the light of his email of 23rd March at D111. I have no evidence of the fitness of any of the proposed appointees. It seems to me that I should remove all three executors and refer the matter to one of the Chancery district judges for him to decide who should be appointed in their place. Given the charging rates quoted, my present inclination would be to appoint Mr Hopkins, simply because he charges less than Miss Witter. Mr Cusworth does not charge an hourly rate, but a fixed fee equivalent to 1.25 percent of the estate’s value. It seems to me that that would be something in the order of 25 to 30 hours’ work at the rate charged by Mr Hopkins. I would not have expected as much as that to be required; but it seems to me, subject to any submissions, that I can do no more than refer the matter to one of the Chancery district judges, unless the parties reach agreement on an alternative course, in which case the matter can just be referred to me by agreement on paper.[83]That is my decision and my reasons for it. THE JUDGE: Yes, Mr Heath. MR HEATH: My lord, on the point of the other executors, I think what we had anticipated was that prior to the trial Jayne would approve one of the three in the event that the case went against her and we would then have obtained appropriate certificates of fitness at that stage. THE JUDGE: Yes. MR HEATH: My lord, I am— THE JUDGE: That has not happened. MR HEATH: No. I am certainly content to leave it on the basis that if we can agree one between us, then we can notify the court and file appropriate certificates and the court can deal with the matter on paper. THE JUDGE: Yes. MR HEATH: If it becomes contentious, and it is perhaps likely, then I respectfully agree that it will have to come back before a Chancery judge. THE JUDGE: Yes. Yes, Miss Seed, do you wish to say anything about that? MISS SEED: About Mr Heath’s— THE JUDGE: Yes, about what we do about appointing someone else. What I am suggesting is that if you can reach agreement, I can deal with it on paper. If not, I am afraid that a further hearing before a Chancery district judge will be required to decide who should actually act in the estate. At the moment, the cheapest option seems to be Butchers & Barlow, I think it is. MR HEATH: Butcher & Barlow, my lord. THE JUDGE: Yes. I do not think I can take it any further than that at the moment. MISS SEED: Yes, I understand, my lord. THE JUDGE: Yes. Now, we have to deal with the issue of costs, I am afraid. MR HEATH: My lord, I have two main submissions. The first is that costs should follow the event and at the time when we filed the claim form and issued the claim form there were two alternative claims and it was made clear from the outset really in the letter before action that we would consent to an independent executor being appointed. So, there are two points. Firstly, that we have succeeded, but second of all, that if one looks at the letter before action, the whole litigation could have been avoided in my respectful submission if the defendant had consented at that point to an independent executor being appointed. On the face of the papers, in my submission that was always going to be the likely result. My lord, there is another relevant matter, which is that District Judge Khan indicated at the case management conference – this is at D102 – that he believed this matter would be best dealt with by appointing an independent executor. So, although Miss Seed has not taken legal advice, it is not as though she has not had a judicial nudge, if I can use that phrase, as to what was likely to happen, but my lord even though she has not been represented, in my respectful submission it is not appropriate to take that into account in deciding whether she should have accepted the letter before action. I think it was Tinkler & Anor v Elliott [2012] EWCA Civ 1289, a case in which the Court of Appeal said that indulgence should not be given to litigants in person just because they do not understand the legal process. By analogy with that case, in my submission had Miss Seed taken an appropriate view of matters in November 2012, the whole costs of the litigation could have been avoided. THE JUDGE: Yes. Yes, Miss Seed, what do you want to say about costs? MISS SEED: My lord, I wish to say that the contract that O’Neill Morgan signed with my sisters was a private matter and she shouldn’t have been billing her work to my mum’s estate and had my sisters paid for that work then we wouldn’t have been in the situation that we’ve found ourselves in. I will have to take advice on whether that contract was legal or not. In the meantime, I do believe, even though you have removed us all, that the claimants pursued a case against me which was unfair and that their solicitor is partly responsible for this case so I still believe that the costs in this case should be borne by the claimants and their solicitor and the costs for an independent solicitor should also be borne by the claimants and their solicitor. THE JUDGE: Yes, thank you. Mr Heath, is there anything you want to say in response? MR HEATH: Well, my lord, just on the point about who should have been bearing the costs and the defendant suggesting that that was really the sticking point. If that was really the sticking point, then that could have been dealt with in an argument that would have lasted no more than about half an hour, I would have thought, rather than a two-day trial about who was to be the executor. THE JUDGE: Yes. MR HEATH: As far as the allegation is concerned that O’Neill Morgan are behind the litigation, I would simply draw your lordship’s attention to the earlier correspondence where O’Neill Morgan were perfectly happy to step aside and allow an independent executor to be appointed. It was not as though they were thirsting after the administration of this estate. Far from it, I would respectfully suggest. THE JUDGE: Yes. Yes, thank you. HIS HONOUR

JUDGE HODGE QC:

[84]I have already delivered my substantive ex temporary judgment in this matter. For the reasons I there gave, I have ordered that all three of the appointed executors should be removed from office. That was a course that the claimants accepted that the court should take. They accepted their removal as the price of securing the removal of their sister as executrix.[85]It does seem to me that this is all very unfortunate. For the reasons I have already given in my substantive judgment, I am satisfied that this was a situation in which right from the outset the two claimants had taken the view that they could not work with their sister, Jayne. The defendant has submitted that the contract that O’Neill Morgan signed with the claimants was a private matter and that costs should not have been billed to the estate. I am not aware that costs have been billed to the estate, but I make it clear that O’Neill Morgan were appointed not to act for the estate, but to act for the claimants and it does seem to me that the costs that they have billed must therefore fall on the claimants rather than the estate.[86]However, that is not the end of the matter because there is now litigation between the claimants and the defendant and I am seised with deciding who should bear the costs of that litigation. It seems to me that the appropriate starting point is the letter before claim of 19th November and the defendant’s response to it of 20th November. I accept Mr Heath’s submission that the defendant could, and in my judgment, for the reasons I have already given, should, at that stage have bowed to what has proved to be the inevitable and have accepted that all three should withdraw from office and allow an independent third party solicitor to be appointed in their place. Had the defendant adopted that course, the costs of this litigation could have been avoided.[87]The court has a discretion as to costs, but the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, although the court may make a different order. I have to have regard to issues such as the parties’ conduct, whether a party has succeeded on part of his case, even if he has not been wholly successful, and should have regard to any admissible offers to settle. I have not been made aware of any admissible offers to settle. The position is that the claimants have been successful in securing the defendant’s removal from the executorship and they have always been willing to stand aside themselves. It therefore seems to me that the claimants have been the successful party in this litigation.[88]Are there any issues of conduct which should lead the court to make some other order? In my judgment, there are not. I have already made it clear that there was friction from the outset between the parties. I have already made it clear that in certain respects the defendant’s suspicions about the involvement and partisanship of O’Neill Morgan were justified in the sense that, for reasons that are unexplained, O’Neill Morgan did initially fail to provide details of the relevant bank accounts to the extent that even at that stage they were able, but that situation did change within the space of a fortnight. It seems to me that the appropriate way to reflect that is to say that there should be no costs in relation to the period up to the letter before action and its response. The claimants will have to bear the costs and O’Neill Morgan’s charges in relation to the period up to 20th November when the defendant failed to respond positively to the letter before claim. However, whilst I do so with regret, it does seem to me that after 20th November the costs should be borne by the defendant’s share in the estate.[89]Equally, the costs of the substituted personal representative going forward need to be addressed. It seems to me that the costs of the substituted personal representative going forward should fall on the estate as a whole because they are the product of the three executors’, and beneficiaries’, inability to work together.[90]Therefore, on the issue of costs, it seems to me that the claimants will have to bear their own costs up to 20th November and O’Neill Morgan should not be entitled to charge the estate anything in relation to them. However, so far as the costs of the litigation after 20th November are concerned, they should be borne by the defendant’s share of the estate. The on-going costs of the substituted personal representative will simply have to fall on the estate as a whole as an expense of the administration in due course.[91]To summarise, the claimants will have their costs from 20th November, but before that, they will have to bear them themselves. From 20th November, the costs of the litigation will have to be borne by the defendant’s share of the estate. The costs of the substituted personal representative will fall on the estate as a whole and therefore will fall to be borne equally by all three beneficiaries. THE JUDGE: Mr Heath, is that sufficiently clear? MR HEATH: My lord, yes. I will draft an order in those terms. THE JUDGE: Yes. Is that sufficiently clear to you, Miss Seed? MISS SEED: Yes, my lord. My lord, if I wish to appeal this decision, do I have a time limit? THE JUDGE: Yes. Appeals are governed by the Civil Procedure Rules Part 52 and there are Practice Directions under Part 52. Essentially, I am sitting as a Judge of the High Court and therefore any appeal lies from me to the Court of Appeal. The time for appealing is 21 days from today. It is not 21 days from the date the order is drawn up. It is 21 days from today. To appeal to the Court of Appeal, you will need permission. You can either ask me for permission or you can consider the matter and you can ask the Court of Appeal for permission in the appellant’s notice if you decide to file one, which, as I say, has to be filed in London at the Royal Courts of Justice in the Civil Appeals Office within 21 days from today. The test for permission to appeal is whether the appeal would have a real prospect of success or whether there is some other compelling reason why the appeal should be heard. Given that this is not a test case in any way which may affect other cases, in practical terms that means that the test is whether the appeal would have a real prospect of success, and, in practical terms, that means whether there is a real prospect of persuading the Court of Appeal that I was either wrong or that my decision is unjust because of a serious procedural or other irregularity in the proceedings in this court. Now, you can ask me for permission to appeal now. If I refuse you permission, I have to fill in a form setting out my reasons and that will be placed before the Court of Appeal if you then decide to pursue the matter there, but that is the test I have to apply. Alternatively, you need not ask me now. You can consider the position over the next 21 days and then you can decide within that time whether you wish to file an appellant’s notice and ask the Court of Appeal for permission and they will then be applying the same test that I have just laid down. So, this is a final decision. It is a final decision of the High Court so an appeal lies to the Court of Appeal and the time for filing an appellant’s notice is 21 days from today. Do you want to ask me for permission to appeal or do you want to consider the matter and then decide over the next 21 days whether you want to ask the Court of Appeal? I should make it clear that if you ask me and I refuse permission, you can still ask the Court of Appeal in the appellant’s notice. MISS SEED: I would like to consider the matter, my lord. THE JUDGE: All right. Well, the order should make it clear, Mr Heath, that this is a final decision to which an appeal lies with permission to the Court of Appeal, that the time for appealing is 21 days from today, and that the defendant has not asked this court for permission to appeal, but that she has the right to ask the Court of Appeal for permission so the Court of Appeal knows that I have not considered the matter. Miss Seed, is there anything else you want to raise with me? MISS SEED: No, there is not, my lord. THE JUDGE: As I say, I have reached my decision with regret, but it does seem to me that unfortunately your mother cannot have appreciated the difficulties there would be in the three of you trying to work together and that it would be wrong for one of the two groups of daughters to be allowed to proceed with the administration of the will to the exclusion of the other group. So, that is in short the reason why I have reached the decision I have and that is because of the difficulties of the three of you working together, which have become apparent during the course of the trial. What I will do is return the trial bundle. I think I need just to take out the last few pages because I do not seem on the court file to have the witness statements in reply so I will just take those out and put them in the court file and I will keep, of course, the witness statements. The costs will have to be assessed in due course on the standard basis. I will give Mr Heath the carriage of the order. So, that is the court file. That is the hearing bundle. There is also a file that contained the exhibits to the original witness statement. I have taken those out and put them in the court file so that can go back as well. Can I thank counsel and can I also thank Miss Seed. I hope I made it sufficiently clear in my judgment that yours was a rational and well-structured and politely conducted cross-examination. You had obviously prepared for it. [Court adjourns]