Martin John Woolls v Lisa Ann Byrtt [2026] EWHC 1141 (Ch)

[2026] EWHC 1141 (Ch)

IN THE HIGH COURT OF JUSTICE Claim no: PT-2025-BRS-000054

Venue BUSINESS AND PROPERTY COURTS IN BRISTOL PROPERTY TRUSTS AND PROBATE LIST (Ch D), Bristol Civil Justice Centre

Date 2 Redcliffe Street, Bristol BS1 6GR Date: 11 May 2026

IN THE MATTER OF THE ESTATE OF JOHN HOUSE WOOLLS DECEASED AND SECTION 50 OF THE ADMINISTRATION OF JUSTICE ACT 1985

Between

MARTIN JOHN WOOLLSClaimant

LISA ANN BYRTTDefendant

Nicholas Evans instructed by Veale Wasborough Vizards LLP for Claimant Toby Huggins instructed by Irwin Mitchell LLP for the Defendant

Hearing Hearing date: 31 March 2026 APPROVED JUDGMENT I direct that pursuant to CPR PD 39A para. 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to the National Archives. The date and time for handing down is deemed to be 4pm on 11 May 2026.

District Judge Wales:

Introduction

[1]This is my judgment on the trial of a claim under CPR part 8, by a claim form issued on 19 May 2025 to remove the Defendant as executor of the will of the late John House Woolls. The hearing was conducted remotely by video on 31 March 2026. There was no oral evidence, and the entirety of the hearing consisted of consideration of the written evidence and submissions by counsel.

[2]At the hearing Mr Evans appeared on behalf of the Claimant, and Mr Huggins appeared on behalf of the Defendant.

Background

[3]The Claimant and the Defendant are the children of John House Woolls.

[4]John House Woolls died on 21 July 2023 having made several professionally drawn wills during his last decade. At the time of his death, he owned three properties in Weston-Super-Mare: his home at Penrice Close; an investment property at Salisbury Road; and an investment property on the High Street.

[5]The Defendant assisted the deceased with his financial affairs in his later years. In addition, the mortgage business operated by the Defendant and her husband, Andre Brytt, occupied a commercial unit at the High Street property. There is a dispute between the parties as to when the Defendant and her husband vacated this unit.

[6]The evidence includes a copy of a letter signed by the deceased dated 1 December 2021 in which he gave his permission to the Defendant to make withdrawals from his Santander account. Later, in April 2023, it is common ground that the Defendant was added as a joint account holder to the deceased’s Santander account.

[7]Following the death of the deceased, the Defendant sought to propound a will dated 20 February 2023 (the “2023 Will”). The 2023 Will was professionally drawn, provides for the Defendant to be sole executor of the estate, and for the residue of the estate to be split equally between the Defendant and the Claimant. As one would expect, there is a will file which contains notes of the deceased’s instructions.

[8]The 2023 Will differs from previous wills in which the Claimant was more generously treated than the Defendant. In 2021, the deceased made a homemade will which appointed both the Claimant and the Defendant as executors, left £25,000 to each of the Defendant’s daughters, and split the residue equally between the Claimant and the Defendant. In 2018, the deceased made a professionally drawn will which appointed both the Claimant and the Defendant as executors and left a pecuniary legacy of £80,000 to the Claimant and £25,000 to each of the Defendant’s two daughters, with the residue being split equally between the Claimant and the Defendant. In October 2015, the deceased made a will which appointed both the Claimant and the Defendant as executors and left a pecuniary legacy to the Claimant of £80,000 and £50,000 to each of the Defendant’s two daughters, with the residue split equally between the Claimant and the Defendant. There are earlier wills along the same lines which are not relevant.

[9]The Claimant asserts that the 2021 Will and the 2023 Will are invalid on account of undue influence and/or fraud perpetrated by the Defendant. In the most general terms, it is alleged by the Claimant that the Defendant was in control of the deceased’s finances and overwhelmed his testamentary intentions, and it is implied that the Defendant made fraudulent representations to the deceased concerning the Claimant. In particular, the Claimant points to the deceased’s letter of wishes of 20 February 2023, the contents of which are derogatory of the Claimant and which the Claimant says are essentially untrue and amount to evidence that the Defendant was poisoning the deceased’s mind.

[10]To that end, the Claimant entered a caveat against the estate at the Probate Registry and sent a series of letters commencing 3 October 2023 to the Defendant raising a number of complaints concerning the validity of the 2023 will and certain steps taken by the Defendant in the administration of the estate.

[11]In December 2023, the Defendant transferred the balance in the Santander account at the date of the deceased’s death, in the sum of £23,528.73, to one of her personal accounts.

[12]In a letter dated 6 August 2024 the Claimant’s solicitors set out complaints regarding the Defendant’s conduct in relation to the estate and asserted that she should step aside as an executor of the estate. In summary the Claimant alleged that the Defendant had misappropriated the deceased’s assets during his lifetime, that the Defendant had failed to pay rent in relation to her (and her husband’s) occupation of the High Street commercial unit, that the Defendant had made false statements claiming that rent had in fact been paid, that following the deceased’s death the Defendant had claimed to be entitled to the funds credited to the joint Santander account, and finally that the Defendant was implicated in the exercise of undue influence and/or fraudulent calumny against the deceased when making the 2023 and 2021 wills.

[13]Correspondence ensued between solicitors, but due to an administrative error the caveat lodged on behalf of the Claimant expired on 11 December 2024 and the Defendant proceeded to obtain a grant in common form on 8 January 2025. The net estate is stated to be £772,731.

[14]Thereafter, the Claimant asked the Defendant to provide an undertaking not to administer the estate, beyond those steps necessary to protect and preserve the estate, and not to make any distribution of assets, without the agreement of the Claimant or until the probate dispute and the section 50 dispute had been resolved by court order. That undertaking was not forthcoming, and the Claimant took steps to administer the estate. Notably, the Defendant sold the High Street property at auction in October 2025 for £350,000, and has taken steps to prepare for the sale of the other properties.

Procedure

[15]As mentioned above, this application was issued on 19 May 2025 (before the sale of the High Street property) seeking removal of the Defendant as executor and the appointment of an independent professional solicitor in her place.

[16]The claim was listed for directions on 8 October 2025 before me. At that hearing the Defendant gave undertakings to the court not to take any further steps to administer the estate, save to complete the sale of the High Street property, to discharge the mortgage on Penrice Close and Salisbury Road from the proceeds, and to hold the balance in a client account pending resolution of the application. I made orders requiring the Defendant to provide information and documents concerning the administration of the estate to the Claimant, including provision of documents and information concerning the sale and the administration of the estate, and listed the claim for trial on written evidence.

Evidence

[17]The evidence comprised the first witness statement of the Claimant dated 17 May 2025, and the first witness statement of the Defendant dated 19 June 2025, the second witness statement of the Claimant dated 24 July 2025, and the second witness statement of the Defendant dated 5 November 2025. There was a hearing bundle of 740 pages, and a supplementary bundle of testamentary documents of 163 pages. Counsel had also prepared a joint bundle of authorities of 365 pages. Both counsel made oral submissions. Prior to the commencement of submissions, I proposed to counsel that I would guillotine submissions at 2 hours each, and there was no objection. In the event, I did indeed require Mr Evans to wrap up his submissions at just over the 2-hour mark. Mr Huggins completed his submissions well within the allotted time.

The law

[18]The removal of executors from office is governed by the Administration of

Justice Act 1985, section 50, which provides that:

“(1) Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion-(a) appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representative of the deceased or any of them…”

[19]The jurisdiction was considered in the well-known decision of the Privy Council in Letterstedt v Broers

(1885) 9 App Cas 371

as cited by Lewison J in The Thomas and Agnes Carvel Foundation v Carvel

[2008] Ch 395

[44-47]. Lewison J cited several relevant passages from the speech of Lord Blackburn in Letterstedt. Per Lord Blackburn at 306:

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

[20]After that passage, Lewison J commented as follows:“46. The overriding consideration is, therefore, whether the trusts are being properly executed; or, as [Lord Blackburn] put it in a later passage, the main guide must be ‘the welfare of the beneficiaries’. He referred to cases in which there was a conflict between a trustee and beneficiary and continued: ‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit of otherwise, the trustee is always asked by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’

[21]Lewison J added, however, at page 389:

‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the estate, it is certainly not to be disregarded.’

[22]Chief Master Marsh in Harris v Earwicker

[2015] EWHC 1915 (Ch)

summarised the modern position in these words:

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

[23]In Long v Rodman

[2019] EWHC 753 (Ch)

Chief Master Marsh added:

“The discretion under section 50 is to be exercised in a pragmatic way … The need for the court to take a pragmatic approach to the jurisdiction has been disregarded by the parties who have, on both sides, adopted an approach that is indulgent and wasteful…At the hearing the court has to consider first, whether the circumstances are such that the discretion is engaged, secondly whether an order should be made under section 50 and, thirdly, if so, what order is appropriate. I would add that it will only rarely be necessary for an application under section 50 to result in a trial because it is usually not normally necessary to make findings in relation to disputed issues of fact for the purposes of dealing with the application …The core guide to the exercise of the court’s discretion …is the welfare of the beneficiaries.”

[24]In Schumacher v Clarke

[2019] EWHC 1031 (Ch)

Chief Master Marsh further added:

“It is critical for present purposes that the core concern of the court is what is in the best interests of the beneficiaries looking at their interests as a whole. The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised. If there is a good arguable case about the conduct of one or more of the executors or trustees, that may well be sufficient to engage the court’s discretionary power under section 50, or the inherent jurisdiction, and make some change of administrator or trustee inevitable. The jurisdiction is quite unlike ordinary inter partes litigation in which one party, of necessity, seeks to prove the facts of its cause of action against another party”

[25]In addition, in relation to the allegations made against the Defendant in this case, Mr Huggins relied upon a passage from the judgment of Deputy Master Linwood in Re Folkes deceased (Griffin v Higgs & others)

[2017] EWHC 2559 (Ch)

from paragraph 41. The passage appears in a part of the learned Judge’s judgment in which they are considering what test should be applied when evaluating each allegation or possible claim against an executor in the context of a section 50 application for removal. The learned

Judge said this:

“…It seems to me that the appropriate test to be applied to each allegation is whether there appears to be on the evidence before the court, or with such evidence that appears likely to be obtained at proportionate cost, the basis for a claim which has a reasonable prospect of success, subject to the consideration of potential defences. Such a claim must enhance the value of the estate relative to the costs of pursuing it. Evidence for a claim or a defence before the court is unlikely to be determinative but must not be speculative or dependent upon matter which may not happen. Further, the whole may be more than the sum of the parties in that individual claims may be borderline but together they may persuade the court that investigation is necessary. Then the question of the replacement of the Executors must be considered in the context of their position as far as knowledge and possible conflicts of interest are concerned…”

I will refer to this passage as the Folkes test later in my judgment.

[26]In the circumstances of this case, it is also relevant to note that a trustee or executor may be put into a position of potential or actual conflict by the settlor or testator appointing them to that office. This amounts to an implied authorisation by the creator of the fiduciary relationship of a degree of conflict in the fiduciary. Thus, in Sargeant v National Westminster Bank plc

(1990) 61 P&CR 518

(CA), a testator had both(i) by his will appointed his three children as his executors and

(ii) during his life let certain farms to them, which they farmed in partnership. After the testator’s death, the children all became beneficially entitled to the capital of the estate under the will. Then, one of the children also died, and the surviving siblings exercised an option in the partnership deed to acquire that child’s share in the partnership. Thus, the surviving children became the only tenants of farms of which they were the sole surviving legal owners, but in which both they and their deceased’s sibling’s estate were beneficially interested. The surviving children now wished as legal owner to sell the farms, but it was argued on behalf of the deceased sibling’s estate that they were not entitled to do so subject to their tenancies, since their interests as tenants would conflict with their duties as trustees.

[27]Norse LJ, with whom Bingham LJ and Sir George Waller agreed said at 523:

“It cannot be doubted that the trustees have ever since been in a position where their interests as tenants may conflict with their duties as trustees to the estate of [the deceased sibling]. But the conclusive objection to the application of the absolute rule on which [counsel for the sibling’s estate] relies is that it is not they who have put themselves in that position. They have been put there mainly by the testator’s grant of the tenancies and by the provisions of the will and partly by contractual arrangements to which [the sibling] himself was a party and of which his representatives cannot complain. The administrators cannot therefore complain of the trustees’ continued assertion of their rights as tenants.”

[28]Such an authorisation does not mean that the trustee or executor so authorised is able to behave unfairly, or indeed to make any decision that he or she likes. Nourse LJ continued:

“Since the absolute rule on which [counsel] relied does not apply, there is no absolute requirement that the trustees should appoint a new trustee before making any sale subject to the tenancies. Nor is there any absolute bar to their selling to themselves so long as the tenancies subsist. On the other hand, they must continue to discharge their fiduciary duties to [the deceased sibling’s estate] in regard to the freeholds, in particular by obtaining the best price for them subject to the tenancies. In the end, the basis for [counsel’s] arguments was seen to be a fear or suspicion that the trustees will not properly discharge that duty. But there is no evidence either that they have failed to discharge their duties in the past or that they will fail to do so in the future. Without such evidence, it is wholly inappropriate for the court to interfere.”

Consideration of grounds

[29]In general terms the grounds relied upon by the Claimant as demonstrating that it is in the beneficiaries’ best interest that the Defendant is removed in favour of a professional executor are:(1) In relation to the Santander account, the Defendant’s assertion that survivorship operated upon the deceased’s death and that the Defendant was consequently the beneficial owner of the balance on death, notwithstanding the documentary record which suggests that the deceased merely authorised her to use the account for and on his behalf as a matter of convenience. It is alleged that the investigation and pursuit of this issue between the parties puts the Defendant in a conflict of interest.

(2) In relation to the payments made from the Santander account during the deceased’s lifetime, amounting to some £90,000, it is alleged that they were unauthorised by the deceased and in circumstances where the Defendant was assisting the deceased with his financial affairs, at least call for an explanation, and that the investigation and pursuit of this issue places the Defendant in a conflict of interest.

(3) That the estate should investigate and pursue the non-payment of rent by the Defendant and her husband in relation to their occupation of the commercial unit, and that the investigation and pursuit of this issue places the Defendant in a conflict of interest.

(4) That the estate should investigate and pursue a potential double portion in relation to the sum of £25,000 paid by the deceased on behalf of the Defendant in or about 2015, which investigation and pursuit places the Defendant in a conflict of interest.

(5) That the personal representative of the estate should take steps to investigate the validity of the 2023 and 2021 wills including the challenges made by the Claimant in correspondence, which investigation and pursuit places the Defendant in a conflict of interest.

(6) That the Defendant has improperly paid herself £100 per week to cover her time and expense managing the properties, totalling £10,400 since the death of the deceased, whereas there is no power to do so under the terms of the 2023 Will.

(7) Whether the Defendant took proper steps to sell the High Street property and whether the sale of the remaining properties is likely to be conducted in an appropriate manner.

A general point – the Defendant’s conflict of interest

[30]I will deal with these grounds under their headings below, although in a different order. But before doing so I will make the important observation, which is common to almost all the grounds in this application, about conflict of interest.

[31]This is a case in which the deceased has chosen the Defendant as his executor, in circumstances where the deceased has (and knew that he had) a significant course of financial dealing with the Defendant during his lifetime. To the extent that the Claimant questions that course of dealing between the deceased and the Defendant, the Defendant does indeed have a conflict of interest in considering and examining her own conduct. However, in my judgment, that conflict of interest is impliedly authorised by the deceased in the circumstances of this case, and is not itself a ground for removal. Nevertheless, that implied authorisation does not extend to ratifying any misappropriation of assets, concealment of documents, obstruction of a claim, or excuse the Defendant from resignation or removal if there is a reasonable claim against her by the estate, or it would nevertheless be in the interests of the beneficiaries as a whole for her to be removed. My consideration of the grounds of the application must therefore be seen through that prism.

The underlying dispute concerning the validity of the 2023 Will

[32]The Claimant asserts undue influence/fraud by the Defendant in relation to the creation of the 2023 Will, and submits that the Defendant is in no position to properly examine her own impugned conduct, which might only be conducted by an independent executor with legal advice. The Claimant develops the point by suggesting that an independent executor would be able to weigh the strength (or otherwise) of a challenge to the validity of the 2023 Will and reach an appropriate settlement with the Claimant. The difference in value to the Claimant between his entitlements under the 2015 Will and the 2023 Will is in fact only £15,000, and the implication is that an independent executor would deal pragmatically with the Claimant’s claim and settle it for a proportion of £15,000, whereas the Defendant has an interest in not doing so, both on account of her interest as residuary beneficiary, but also on account of the fact that it is her conduct that is impugned.

[33]The Defendant’s case on the allegations is that the contents of the deceased’s letter of wishes accompanying the 2023 Will are essentially true, and not therefore evidence of anyone poisoning the deceased’s testamentary intentions. In particular, the Defendant submits that the Claimant has misinterpreted the letter of wishes as far as it mentions a period of non-payment of rent for the commercial unit.

[34]In my judgment, this ground is misconceived. The Defendant has obtained a grant of probate and is entitled to exercise it, unless and until the Claimant commences probate proceedings seeking to have the grant set-aside and propounding an earlier will. Pending determination of any such proceedings, the Defendant remains the duly appointed executor with fiduciary responsibilities in relation to the preservation and administration of the estate. In probate claims where there is an existing grant, the executors in their role as such (qua executor) are neutral and their role qua executor is limited to providing information and documentation to the parties and the court. It is often the case that executors are also beneficiaries, and so are not themselves indifferent to the outcome, and they may also be witnesses and might be called to give evidence. But that is beside the point when considering their duties qua executor because,in substance, probate disputes are disputes between rival beneficiaries. It is the beneficiaries that must consent to any settlement under section 49 of the Administration of Justice Act 1985. In consequence, even if a neutral executor were to be appointed, they would still need the consent of the Defendant to settle a threatened or actual probate claim.

[35]This ground is therefore flawed. First, because the Claimant’s remedy in relation to this complaint is a probate claim, not an application to remove the Defendant as executor of the impugned will. Second, because no probate claim has been brought and might well never be brought. It is now some 15 months since the grant and the proportionality of the Claimant bringing probate proceedings alleging fraud (never to be lightly undertaken) to potentially recover an additional £15,000, or fail and pay a substantial costs order, makes little economic sense. In that sense, the claim does not pass the Folkes test (if applicable at all in these circumstances). Third, the Defendant qua executor is neutral regarding any such claim and in my judgment (absent exceptional circumstances) is not under any obligation qua executor to investigate the legitimacy of the grant, and has fulfilled her obligations to provide information e.g. the will files. Fourth, the Defendant’s consent qua beneficiary would probably be required regardless of the identity of the executor in order to settle any such claim. Finally, there is no suggestion or evidence that the Defendant has or would misuse her powers as executor to frustrate a probate claim (for instance by a premature distribution, or by concealing or destroying documentary evidence). If a probate claim were brought, and the Defendant nevertheless threatened a distribution which prejudiced the claim, then that might be grounds for injunctive relief or removal, but that has not happened.

Payments from the Santander account inter vivos

[36]The Claimant points to numerous small withdrawals of cash from the Santander account totalling £90,700 between July 2016 and July 2023, and submits that the circumstances show that the deceased placed trust and confidence in the Defendant in relation to his financial affairs and that these apparently excessive cash withdrawals require an explanation, without which undue influence is presumed. The Claimant refers to the deceased’s letter to the bank dated 1 December 2021 in which he gave instructions that the Defendant has permission to withdraw money without limit from his account, including cash point withdrawals:

“due to my mobility and health issues and inability to get to the bank and shops myself...”

[37]In addition, it is pertinent that in April 2023, the Defendant was added as a joint account holder to the same Santander account.

[38]In response, the Defendant contends that the withdrawals were made by the deceased and only made by her at his direction, and she cannot therefore account for these withdrawals other than to say that on occasion the deceased enjoyed spending his money. Furthermore, that the withdrawals are not excessive, and amount to an average cash spend of about £12,800pa. The Defendant contends that the deceased was of a generation accustomed to dealing in cash, and only his essential utilities etc were met by standing order or direct debts from his bank account, so that £12,800pa is not inherently exceptional in the scheme of things and does not require an explanation. To the extent that there is a significant uptick in expenditure in 2021 (£15,700) and 2022 (£22,400) the Defendant contends this corresponds with the deceased’s terminal diagnosis and a relaxation of his spending habits, and the downturn in expenditure in 2023 (£4,300 over 7 months) reflects his deteriorating health. It is notable that there is no uptick in expenditure correlating to the creation of the joint account in April 2023, on the contrary the 2023 cash withdrawals were markedly reduced from the previous year.

[39]Mr Huggins contends that even on the Claimant’s best case there is no conceivable claim against the Defendant for return of the entire £90,700, and the claim, at its highest, might only be for those sums which can be established to have been withdrawn by the Defendant and cannot be reasonably be accounted for, in circumstances where the Defendant’s evidence is that she only made withdrawals at the direction of the Defendant.

[40]Against that background it is difficult to fathom what further insight or evidence an independent executor might bring to these contentions. It is not suggested that there is any documentation or evidence that might be available to an independent executor which is not available to the Claimant. The Claimant has the bank statements, and has been able to construct his suspicions accordingly, and the Claimant now has the Defendant’s explanation furnished in these proceedings. There is no evidence, nor is there any realistic prospect of any evidence emerging, that the Defendant directly took any of the cash withdrawals for her own benefit. The allegations proceed, and are likely only to ever proceed, upon inferences and implication.

[41]In any such claim, the burden of proof rests upon the estate. It strikes me that there is a realistic prospect that the estate could demonstrate that the deceased placed his trust and confidence in his financial affairs in the Defendant. However, there is no direct evidence that the Defendant received the benefit of any of these withdrawals. Furthermore, the Defendant has provided an explanation of informal oral dealings in cash which is plausible and by its nature there is unlikely to be any evidence to rebut it.

[42]In my judgment on the evidence available to the court, or likely to be available in the future, the cash withdrawals are not obviously gross or excessive. If a claim were to be pursued, the likely value of the claim is likely to be a fraction of the aggregate sum of £90,700, because it is evident that the deceased paid for everything, apart from utilities, in cash.

[43]I have examined the Claimant’s analysis of the withdrawals and it strikes me that realistically the maximum value of any claim would be for the difference between the historic rate of expenditure of circa £11,000pa and the expenditure in the exceptional years of 2021 of £15,700 and 2022 of £22,400, so that the maximum realistic value of any claim would be only about £16,000. The Claimant’s interest in that claim would be 50%, or £8,000.

[44]It is therefore difficult to foresee a situation in which a claim by the estate against the Defendant would be economically beneficial to the estate. Litigation is costly. A complicated claim for a relatively small sum is unlikely to be proportionate, and even if successful the net recovery is highly likely to be worth less than £8,000 to the Claimant. There would also be a risk of failure and an adverse costs order i.e. a detriment to the estate. In the round, the Folkes test is not satisfied.

[45]Furthermore, it has to be borne in mind that the deceased authorised the Defendant to withdraw cash on his behalf (in 2021) and latterly in 2023 consented to her being added as a joint account holder, and nevertheless by his 2023 Will appointed her as his executor. To the extent that the Defendant may have a conflict in considering her own actions in relation to withdrawing cash from the deceased’s bank account, this was in my judgment impliedly authorised and contemplated by the deceased and is not therefore itself a sufficient ground to remove the Defendant.

Payments from the Santander account post-death

[46]In her written evidence the Defendant acknowledged that she was not entitled to remuneration, but suggested that she might be entitled to assert an entitlement to retain the funds by way of a quantum meruit and would abide by the decision of the court. The Claimant nevertheless criticises the Defendant for not paying the sum of £10,400 back into the estate.

[47]In submissions, Mr Huggins on behalf of the Defendant went one step further and confirmed that there was no legal basis for the Defendant to pay herself for work done in the administration of the estate, and that the Defendant was prepared to re-pay. Mr Huggins pointed out the Defendant’s position was an honest mistake as to her rights and responsibilities, and pointed to correspondence under which it appeared that the Claimant was equally ignorant of the true position. Mr Huggins submitted that this amounted to a minor mistake which would be corrected and that there was no need to remove the Defendant in order to serve the best interests of the beneficiaries, not least in view of the likely substantial costs of a professional executor.

[48]In relation to the payment of the balance of the Santander account of £23,528.73, Mr Huggins submitted that survivorship operated because the account was transferred into joint names in April 2023, and that the written evidence established that survivorship was the intention of the parties. The Defendant claims in her evidence that the bank manager orally advised the deceased and the Defendant that survivorship would operate when going through the process of adding the Defendant as a joint account holder, and furthermore the deceased had explained that he wanted her to have the money on his death because he wanted to contribute to the Defendant’s daughter’s wedding.

[49]Mr Huggins submitted that the Claimant’s interest in the sum of £23,528.73 was effectively half of that sum, so under £12,000, and it must therefore be doubtful that it would be proportionate for the estate to engage the Defendant in proceedings, or proportionate to appoint an independent professional executor to consider whether further steps should be taken to recover that sum, and then if so advised, proceed to litigation to recover that sum.

[50]In my judgment, I agree with much of Mr Huggins’ submission. The 2021 letter (which makes it plain that the Defendant only has access to the account for the convenience of the deceased and not for her own benefit) is not in my judgment likely to be determinative of the issue, because the addition of the Defendant as joint account holder in April 2023 happened some years later at a time when the deceased had a terminal diagnosis. The Defendant’s contentions as to the bank manager’s explanation and the conversation with the deceased concerning funding her daughter’s wedding are not inherently implausible. It is difficult to foresee what further enquiries and investigations an independent executor might make into these matters. The sum at stake for the Claimant is a modest sum of less than £12,000, and it must be doubtful that the costs of investigation and administration by an independent professional executor could be justified in circumstances where recovery, on the face of it, may be a speculative prospect and where there is a risk of failure and an adverse costs order. In my judgment, the Folkes test is not satisfied.

[51]Finally, this is again a situation in which the deceased has impliedly authorised a degree of conflict of interest on the part of the Defendant by making the Defendant a joint account holder and also appointing her executor of his 2023 Will. Non-payment of rent by the Defendant and her husband for the commercial unit at High Street

[52]In my judgment, there is very little in this contention. It is clear from the attendance note dated 20 April 2015 that the deceased was well aware that the Defendant and her husband had enjoyed about £45,000 in unpaid rent at that time. It is clear that his instructions for his 2015 Will were intended to adjust the balance between the Claimant and the Defendant in order to take account of this matter. In his letter of wishes of the same date the deceased provided more details, stating that the passing rent for the shop was £640pcm, but the Defendant and her husband had financial difficulties and that the deceased had allowed them to occupy rent free since December 2009, and that he had decided long ago not to pursue payment.

[53]It is clear from the attendance note dated 9 November 2018 that the solicitor understood that the Defendant and her husband’s business on the High Street had closed, and the deceased gave instructions that the shop had been re-let.

[54]Furthermore, although the Defendant has not previously been able to point to any documentation which demonstrates that the Defendant vacated the premises before 2018, the deceased’s bank statements contain entries which appear to show that a different tenant, Noszkay Boutique, was in occupation in 2017. This is entirely in keeping with the instructions given by the deceased in the following year.

[55]Recovery of that unpaid rent is statute-barred after 6 years by virtue of section 19 of the Limitation Act 1980 (whether or not the lease was a specialty).

[56]In my judgment, the facts are plainly established by the documents mentioned and there is therefore no real prospect of the estate making any claim against the Defendant, and no prospect of the appointment of an independent professional executor making any progress towards recovery. The claim falls significantly short of the Folkes threshold.

[57]Furthermore, to the extent that the Defendant may have some conflict of interest in considering a potential claim against herself, this plainly has been impliedly authorised by the deceased. The deceased knew that the Defendant had benefitted from unpaid rent, drafted his wills accordingly, and nevertheless appointed the Defendant as executor of his estate.

Double portion

[58]In essence the rule against double portions is a legal presumption that sums advanced inter vivos in order to make provision for a child should be aggregated when calculating their inheritance upon death. In short, the idea is that a child should not inherit twice or enjoy ‘a double portion’. The law is contained in the leading case of Cameron v Cameron

[1996] Ch 1999

. I will not recite the legal principles in more detail or comment on the merits because I have come to the view that this issue should be litigated between the parties (unless agreed).

[59]The background to his aspect of the dispute is that it is said that in 2015 the deceased made a payment to Lloyds Bank of £25,000 for the benefit of the Defendant. In 2014, the deceased instructed his solicitor in anticipation of making the payment that what was to be to be paid to Lloyds should come from the Defendant’s share of his estate. In 2015, after making the payment he gave instructions for his October 2015 Will in which he increased the legacy due to the Claimant from £50,000 to £80,000 to compensate the Claimant for what he had paid out to Lloyds for the Defendant. As set out above, the deceased’s final will did not contain any pecuniary legacies and left the entire residue to the Claimant and the Defendant in equal shares, without the previous adjustments.

[60]The exact circumstances of the payment are opaque, not least because the Defendant has not disclosed the settlement agreement which gave rise to the payment. It is said by the Defendant that the settlement agreement contains a confidentiality clause prohibiting its disclosure. It appears from the explanations provided at the hearing that the payment concerned a claim brought by Lloyds Bank against both the deceased and the Defendant, and that the deceased either made a payment of £50,000 on behalf of himself and the Defendant jointly, or paid £25,000 as guarantor of the Defendant’s obligations. The factual background was never fully explained in the evidence or in submissions.

[61]Again, the Claimant submits that the Defendant has a conflict of interest in considering whether the presumption of a double portion applies against her, and the issue cannot be effectively investigated unless and until the Defendant discloses the settlement agreement and other documentation surrounding the dispute and the settlement.

[62]Again, in my judgment, to the extent that the Defendant has a conflict of interest in considering whether she should account for a double portion, that conflict has been impliedly authorised by her appointment by the deceased as his executor. Again, it is plain that the deceased was aware of the payment, and in 2015 wanted to take it into account in his testamentary intentions, and in later years changed his testamentary intentions and did not appear to take it into account. Nevertheless, the Defendant was to be a joint executor with the Claimant in the 2015 Will, and is appointed sole executor under the 2023 Will.

[63]In my judgment, this issue does not require the removal of the Defendant as executor in order to resolve the issue or safeguard the interests of the beneficiaries. It is a discrete issue, of modest value, and in my judgment it would be preferable for the Claimant to apply to the court for directions under CPR part 64, rather than to remove the Defendant and appoint a costly professional executor. This issue of double portions is akin to an issue arising as to the construction of a will, which is often resolved by proceedings under CPR part 64. To the extent that this procedure might be objectionable due to the conflict of interest of the Defendant, that conflict of interest has been impliedly authorised by the deceased, and furthermore the conflict will have a limited relevance during any part 64 application. So, for instance, the Defendant could be ordered to give standard disclosure in relation to this issue, and to the extent that the Defendant will be required to search for and disclose documents that are adverse to her case she will be in the same position as all litigants in inter partes litigation. The will files have already been disclosed and appear in the hearing bundle. The Defendant could be expressly ordered within the part 64 application to disclose the settlement agreement, and the confidentiality of that agreement can be protected by appropriate court orders and other measures. The part 64 process will entitle the Claimant to have access to all the relevant information and documentation, and have his say as a beneficiary with a direct financial interest. The proceedings can be case managed at proportionate cost. It is difficult to see what the appointment of a professional executor might achieve in relation to this issue. Unless the issue is agreed between the Claimant and the Defendant (which it might yet be), it appears likely that any professional executor would themselves have to consider applying to the court under CPR part 64 for directions on this issue. There do not appear to any obvious additional lines of enquiry to be made by a professional executor which might be decisive, or cannot be satisfactorily replaced by an order for disclosure by the Defendant. Finally, the involvement of a professional executor in this process will be expensive and may well transpire to be disproportionate to the sums in dispute. Plainly, the estate would have to meet the litigation expenses of a professional executor whatever the outcome, whereas there is at least the prospect of the cost of part 64 proceedings between the Claimant and the Defendant being borne by the unsuccessful party.

[64]Having come to that conclusion, I will not attempt to make any observations about the merits of the Claimant’s claim of a double portion, other than to say that in my judgment resolution of the issue between the parties under CPR part 64 would be a contest between the Claimant and the Defendant as beneficiaries so that in principle costs should follow the event. It would certainly be wrong for the parties to proceed on the basis that the estate would be paying their costs, regardless of the outcome.

Conduct of the sale of the High Street

[65]In my judgment, there is little in this point. The Claimant has made a raft of criticisms of the Defendant’s handling of the sale, which ultimately ended up with an auction of the property in October 2025, and the Claimant claims that leads him to have no confidence that the Defendant’s sale of the remaining properties would be in the best interests of the beneficiaries.

[66]However, it is plain from the documentation that the Defendant has acted in accordance with advice from respectable agents. In February 2025. the Defendant was advised by David Plaister property agents to sell by auction with a guide price of £350,000. The Defendant explains in her written evidence that it was removed from auction in May 2025 to address an improvement notice served by the local authority, and then placed back for auction in July 2025. The Claimant by his solicitor sought to have the Defendant remove the property from auction, but the Defendant refused, explaining in correspondence (amongst other things) that the next auction would not be until September 2025 and there was a penalty of £1,000 for removing the property from the auction. The Claimant criticises the Defendant for being uncooperative and not giving undertakings not to auction the property, but it is unclear to me why the Defendant should have done so. The Claimant criticises the Defendant in correspondence at the time, referring to her alleged unsuitability to continue in light of this section 50 application, the lack of urgency to sell, the alleged failure to provide written opinions from at least 2 estate agents ‘to support an immediate sale by auction of High Street’, the alleged lack of any reserve, and the loss of opportunity for the Claimant to have the property transferred to him, and clarity over holding the proceeds. In my judgment, none of these factors were compelling. Plainly the property had to be sold, and the section 50 application did not require the sale to be postponed. The Claimant’s position in seeking leverage so that the property might be transferred to him is transparent, and is an obvious collateral purpose. The interests of the Claimant do not equate to the interests of the beneficiaries as a whole, and in any event the Claimant was free to bid at the auction. As Mr Huggins pointed out, the STEP provisions incorporated into the terms of the 2023 Will expressly excluded any obligation on the executor to consult beneficiaries. The correspondence shows that it was within the knowledge of the Claimant’s solicitors that a reserve would be set by the auctioneer at no more than 10% above the guide price of £350,000. The notion that the sale proceeds were in peril because the Defendant proposed to pay them into the former joint Santander account was, in my judgment, unjustified. Just because the Claimant had asserted title to the funds credited to the account upon the deceased’s death by way of survivorship did not justify any implication that the Claimant would somehow assert title to estate funds paid into the account post-death. No such assertion or implication had been made by the Defendant in previous correspondence.

Conclusion

[67]In the circumstances, I am not minded to make an order removing the Defendant as executor and appointing a professional executor. In summary:(1) The Claimant’s remedy for his complaints regarding the validity of the 2023 Will and the 2021 Will is a probate claim not a removal application under section 50. The grant to the Defendant is for the time being valid and it would be wrong to go behind it unless a probate claim were to be issued. No such claim has been issued, and the claim is most unlikely to be brought, considerable time having already passed and the claim being uneconomic and disproportionate for the Claimant to pursue.

(2) The deceased chose the Defendant as his sole executor, and this choice is to be respected as far as circumstances allow.

(3) In choosing the Defendant as executor, the deceased impliedly authorised the Defendant to be placed in a position of conflict when considering her inter vivos interactions with the deceased. In the circumstances of this case, this applies across the whole breadth of complaints raised by the Claimant (save for the £10,400 remuneration). It is a key point of difference because each of the Claimant’s allegations put the Defendant in a conflict of interest or potential conflict of interest in some or other respect. In a different case, where the executor was not impliedly authorised to harbour such a conflict of interest, consideration of the totality of allegations may have led me towards an order for removal. However, this is a case of implied authorisation.

(4) It is notable that the Claimant comprises 50% of the constituency of beneficiaries, and the Defendant the other 50%. Both parties’ preferences qua beneficiary are equally valid, neither has a majority.

(5) The appointment of a professional executor will be an expensive exercise, particularly if the professional executor is to become embroiled in litigation, for instance, concerning the alleged double portion. The estate is not small, but neither is it large, and the fees of a professional executor could easily run into tens of thousands of pounds, and much more if there is to be litigation. It is not in the interests of the beneficiaries as a whole to incur this cost unless their interests require it.

(6) The proposed claim by the estate against the Defendant in respect of the cash payments made from the deceased’s Santander bank account (latterly a joint account) is in my judgment weak and somewhat speculative, and of limited value. The potential claim does not pass the Folkes test, neither having sufficient prospects of success, nor satisfying a litigation cost/risk/benefit analysis, nor justifying the engagement of a professional executor on a cost/benefit analysis.

(7) The Defendant, somewhat belatedly, agreed at the hearing to repay the sum of £10,400 back to the estate. I am satisfied that the Defendant did not knowingly breach her duties in taking this money, and she now has the benefit of legal advice and representation. As the error has been rectified, it is a minor error and does not require removal of the Defendant.

(8) The proposed claim by the estate against the Defendant in relation to unpaid rent in relation to the commercial unit is unrealistic and falls far short of the Folkes test.

(9) The criticisms of the Defendant in relation to the sale of the High Street are exaggerated and largely unwarranted. To the extent that the Defendant is liable to be criticised, for instance in relation to a lack of communication or transparency, this falls far short from requiring her removal in the interests of the beneficiaries. The Defendant has now had the benefit of legal advice.

(10) The issue regarding the alleged double portion, if it cannot be agreed, can be resolved by the Claimant making an application under CPR part 64, if so advised. The potential litigation of this issue does not require the removal of the Defendant in order to serve the best interests of the beneficiaries. It is a straightforward contest between the Claimant and the Defendant and there is no need for a professional executor to hold the ring.

(11) The further steps in administering the estate involve the sale of the other two properties. These are simple steps, which do not require handling by a professional executor, and can easily be managed by the Defendant with the assistance of solicitors and estate agents. The evident hostility between the Claimant and the Defendant will not be material, because there is no discretion to be exercised by the Defendant and the Defendant does not require the Claimant’s cooperation. Both parties’ interests are aligned in achieving a proper price for the properties and avoiding expenditure. The Defendant has been managing these properties since the death of the deceased, and assisted the deceased for several years before his death. The Defendant has a degree of knowledge and experience of these properties which will be valuable in preparing them for sale and selling them, and (as now acknowledged by the Defendant) will be provided to the estate without charge. After that, the estate falls to be distributed, which is in the circumstances of this case a simple task easily accomplished by the Defendant with assistance from a solicitor.

[68]That is my judgment. The claim is therefore dismissed. I will arrange for a date and time for this judgment to be formally handed down, and the court office will inform the parties. If counsel can agree the terms of a draft order dealing with all consequential matters, and I approve it, then the parties need not attend the hearing. If any element of the draft order remains contentious or unapproved by the court, then those matters will be determined at that hearing. District Judge Wales Bristol Civil Justice Centre23 April 2026