“I have made you an exeter [sic] of my will, so mind & do the best you can it will be what you say goes. not anyone else.”
“In view of the late discovery of numerous suspected gifts made by the Deceased, of which the Executors were unaware until going through her boxes of papers, bank statements and diaries, the IHT tax position could not be determined.”
“38. The executors did not contact the beneficiaries of the estate because matters were so uncertain about what monies had been taken and could be recovered and what needed to be done to bring it to a point when Probate could actually be applied for and then the assets gathered in.”
“37. For this reason, the administration was severely hampered for the first two years because of all the work that needed to be carried out, to see what assets there were and what had disappeared. 38. The other significant reason for not contacting the residuary beneficiaries initially was because the Executors were unsure as to what influence Peter Outlaw seemed to exert over Mary Organ and whether the two Codicils made in 2017 were valid and perhaps even the Will itself … ”
“44. The removal of executors from office is governed by theAdministration of Justice Act 1985, section 50 , which relevantly reads: ‘(1) Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion— (a) appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or (b) if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons. [ … ]’ 45. In relation to section 50, the claimants referred me to the well-known decision of the Privy Council in Letterstedt v Broers(1884) 9 App Cas 371 . That case was actually about the removal of a trustee, but in The Thomas and Agnes Carvel Foundation v Carvel[2008] Ch 395 , [44]-[47], Lewison J made clear that the same principles applied to the removal of a personal representative. He cited several relevant passages from the speech of Lord Blackburn. 46. The first passage is this (at page 306): ‘It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet, if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.’ 47. After that passage, Lewison J commented as follows: ‘46. The overriding consideration is, therefore, whether the trusts are being properly executed; or, as [Lord Blackburn] put it in a later passage, the main guide must be ‘the welfare of the beneficiaries’ … [ … ] 49. … much more recently, Chief Master Marsh in Harris v Earwicker[2015] EWHC 1915 (Ch) summarised the modern position in these words: ‘[9] i. It is unnecessary for the court to find wrongdoing or fault on the part of the personal representatives. The guiding principle is whether the administration of the estate is being carried out properly. Put another way, when looking at the welfare of the beneficiaries, is it in their best interests to replace one or more of the personal representatives? ii. If there is wrongdoing or fault and it is material such as to endanger the estate the court is very likely to exercise its powers under section 50. If, however, there may be some proper criticism of the personal representatives, but it is minor and will not affect the administration of the estate or its assets, it may well not be necessary to exercise the power. iii. The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account. iv. The wishes of the beneficiaries may also be relevant. I would add, however, that the beneficiaries, or some of them, have no right to demand replacement and the court has to make a balanced judgment taking a broad view about what is in the interests of the beneficiaries as a whole. This is particularly important where, as here, there are competing points of view. v. The court needs to consider whether, in the absence of significant wrongdoing or fault, it has become impossible or difficult for the personal representatives to complete the administration of the estate or administer the will trusts. The court must review what has been done to administer the estate and what remains to be done. A breakdown of the relationship between some or all of the beneficiaries and the personal representatives will not without more justify their replacement. If, however, the breakdown of relations makes the task of the personal representatives difficult or impossible, replacement may be the only option. vi. The additional cost of replacing some or all of the personal representatives, particularly where it is proposed to appoint professional persons, is a material consideration. The size of estate and the scope and cost of the work which will be needed will have to be considered.’ [ … ] 50. In Long v Rodman[2019] EWHC 753 (Ch) , the same judge dealt with another case under section 50. Of particular significance in this case is the fact, that, as Chief Master Marsh said, ‘17. This application under section 50 is unusual. Often such applications are made after a long period with an administrator in post based on the administrator’s failure to make substantial progress with the administration of the estate. In this case it is broadly common ground that most of the steps that needed to be taken in the estate have been completed or, where that is not the case, a way forward has been agreed that will not involve Mr Long being required to take further action on behalf of Norman’s estate. It is also common ground between the parties that the relationship between Mr Long and the Rodman sisters has completely broken down. The evidence is replete with accusation and counter-accusation …’ 51. The Chief Master went on to say: “19. The discretion under section 50 is to be exercised in a pragmatic way … The need for the court to take a pragmatic approach to the jurisdiction has been disregarded by parties who have, on both sides, adopted an approach that is indulgent and wasteful. Much of the evidence is of limited assistance to the court. 20. At the hearing the court has to consider first, whether the circumstances are such that the discretion is engaged, secondly whether an order should be made under section 50 and, thirdly, if so, what order is appropriate. I would add that it will only rarely be necessary for an application under section 50 to result in a trial because it is usually not normally necessary to make findings in relation to disputed issues of fact for the purposes of dealing with the application. [ … ] 52. The Chief Master then … said: ‘22. The core guide to the exercise of the court’s discretion derives from the judgment of Lord Blackburn in Letterstedt v Broers(1884) 9 App Cas 371 , as applied to applications under section 50 by Lewison J in Thomas and Agnes Carvel Foundation v Carvel[2008] Ch 395 . It is the welfare of the beneficiaries.’ In the result, the Chief Master removed Mr Long, for (at [68]), ‘he has conflicts of interest that make it inappropriate for him to remain in office.’ 53. And, in Schumacher v Clarke[2019] EWHC 1031 (Ch) , the same judge said: ‘18. It is critical for present purposes that the core concern of the court is what is in the best interests of the beneficiaries looking at their interests as a whole. The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised. If there is a good arguable case about the conduct of one or more of the executors or trustees, that may well be sufficient to engage the court's discretionary power under s.50, or the inherent jurisdiction, and make some change of administrator or trustee inevitable. The jurisdiction is quite unlike ordinary inter partes litigation in which one party, of necessity, seeks to prove the facts its cause of action against another party’.” ‘(1) Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion— (a) appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or (b) if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons. [ … ]’ ‘It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet, if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.’ ‘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’ … ‘[9] i. It is unnecessary for the court to find wrongdoing or fault on the part of the personal representatives. The guiding principle is whether the administration of the estate is being carried out properly. Put another way, when looking at the welfare of the beneficiaries, is it in their best interests to replace one or more of the personal representatives? ii. If there is wrongdoing or fault and it is material such as to endanger the estate the court is very likely to exercise its powers under section 50. If, however, there may be some proper criticism of the personal representatives, but it is minor and will not affect the administration of the estate or its assets, it may well not be necessary to exercise the power. iii. The wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account. iv. The wishes of the beneficiaries may also be relevant. I would add, however, that the beneficiaries, or some of them, have no right to demand replacement and the court has to make a balanced judgment taking a broad view about what is in the interests of the beneficiaries as a whole. This is particularly important where, as here, there are competing points of view. v. The court needs to consider whether, in the absence of significant wrongdoing or fault, it has become impossible or difficult for the personal representatives to complete the administration of the estate or administer the will trusts. The court must review what has been done to administer the estate and what remains to be done. A breakdown of the relationship between some or all of the beneficiaries and the personal representatives will not without more justify their replacement. If, however, the breakdown of relations makes the task of the personal representatives difficult or impossible, replacement may be the only option. vi. The additional cost of replacing some or all of the personal representatives, particularly where it is proposed to appoint professional persons, is a material consideration. The size of estate and the scope and cost of the work which will be needed will have to be considered.’ ‘17. This application under section 50 is unusual. Often such applications are made after a long period with an administrator in post based on the administrator’s failure to make substantial progress with the administration of the estate. In this case it is broadly common ground that most of the steps that needed to be taken in the estate have been completed or, where that is not the case, a way forward has been agreed that will not involve Mr Long being required to take further action on behalf of Norman’s estate. It is also common ground between the parties that the relationship between Mr Long and the Rodman sisters has completely broken down. The evidence is replete with accusation and counter-accusation …’ “19. The discretion under section 50 is to be exercised in a pragmatic way … The need for the court to take a pragmatic approach to the jurisdiction has been disregarded by parties who have, on both sides, adopted an approach that is indulgent and wasteful. Much of the evidence is of limited assistance to the court. 20. At the hearing the court has to consider first, whether the circumstances are such that the discretion is engaged, secondly whether an order should be made under section 50 and, thirdly, if so, what order is appropriate. I would add that it will only rarely be necessary for an application under section 50 to result in a trial because it is usually not normally necessary to make findings in relation to disputed issues of fact for the purposes of dealing with the application. [ … ] ‘22. The core guide to the exercise of the court’s discretion derives from the judgment of Lord Blackburn in Letterstedt v Broers(1884) 9 App Cas 371 , as applied to applications under section 50 by Lewison J in Thomas and Agnes Carvel Foundation v Carvel[2008] Ch 395 . It is the welfare of the beneficiaries.’ ‘he has conflicts of interest that make it inappropriate for him to remain in office.’ ‘18. It is critical for present purposes that the core concern of the court is what is in the best interests of the beneficiaries looking at their interests as a whole. The power of the court is not dependent on making adverse findings of fact, and it is not necessary for the claimant to prove wrongdoing. It will often suffice for the court to conclude that a party has made out a good arguable case about the issues that are raised. If there is a good arguable case about the conduct of one or more of the executors or trustees, that may well be sufficient to engage the court's discretionary power under s.50, or the inherent jurisdiction, and make some change of administrator or trustee inevitable. The jurisdiction is quite unlike ordinary inter partes litigation in which one party, of necessity, seeks to prove the facts its cause of action against another party’.”
“One starts with the proposition that of course a will speaks from death, and the executor's office springs from the will, but no executor is bound to propound any will or to assume the office of executor. He can decline to act, sit by and do nothing and nobody has any right at law to attack him for it even though they may criticise him in their private capacities for failing perhaps to observe a non-contractual promise which he made to the testator during life. [ … ] It therefore seems to me that at the start of the period after the death of a testator one cannot say that the executor appointed by the will has a duty to act. In this case gradually Mr Palfreyman began (to use the classic words) to intermeddle with the estate. That would have given rise in due course to a right for beneficiaries under the estate to issue the proper proceedings in the Probate Registry to compel Mr Palfreyman to take a grant of probate. It is notable in this case that nobody ever seems to have thought of adopting that obvious and ordinary self-help remedy. Instead, when there were complaints, the legatees went roaring round to the Solicitors' Complaints Bureau and otherwise looked to them to look after their interests rather than protecting them themselves. That is, however, by the by. The point is that there is no immediate obligation upon the executor to do anything. After a time, Mr Palfreyman undoubtedly had intermeddled with the estate sufficiently to make him liable for citation to take a grant of probate. I think that the date by which that arises is mid-July 1988. By that date he has assumed to act as executor. As Mr Kaye rightly submitted, he was not an executor de son tort; he was an executor appointed by a will intermeddling with an estate, and so assuming the office which was granted to him of which probate was the irrefutable evidence of him holding that office. Did there thereupon arise at mid-July 1988, a duty upon Mr Palfreyman as executor to notify legatees? If so, it must surely be a duty to notify all legatees. It cannot be a duty to notify only some. Such a duty could only arise upon a knowledge at that time that there were no debts which would require any abatement of legacies. Until an executor is fully satisfied that there has been a complete payment of all debts, he cannot be under any obligation whatever to pay any legacy or, to my mind, to give notice to legatees of their prospective gain. Further, as it seems to me, the authorities settle beyond any question in this court and in the Court of Appeal, the proposition that there is no obligation upon an executor to give notice to legatees. The authorities are fortunately of respectable antiquity. It was said that I could revisit them in the light of Henderson v Merrett Syndicates Ltd[1995] 2 AC 145 , but I confess to thinking that there is no need to revisit them, whatever that may mean, and that they are in accordance with principle and long settled and fully established law.”
“The judgment of Vaughan Williams L.J. is at page 661 (line 6): ‘[Mr Rowland] had to start with this admission – that prima facie there was no duty on the executor to disclose;’ Then further down: ‘It is said ... that, though generally there is no duty on the executor, yet in this particular case there is a duty, [because] This word appears in the report of Re Lewis, but not in that of Cancer Research Campaign. by reason of the gift over the executor’ – notice this – ‘will get an advantage’. This was, as the learned Lord Justice started by observing, a very hard case. The man benefited directly from his own inaction. Vaughan Williams L.J. then cited Lord Hardwicke in Chauncy v. Graydon (supra): ‘Where there is a condition annexed by a will to a devise of real or personal estate, and no notice required to be given, unless the legatees perform the condition, they cannot be entitled, and where there is a devise over, a forfeiture incurs.’ As Mr. Rowlands very properly says, that is against him; but [Lord Hardwicke went on to say] ‘It is said the executors should have given notice, but the testator has laid no such obligation upon them, neither do the executors take any beneficial interest ... ’ Lower down on 662, Vaughan Williams L.J. says: ‘ ... we must start with the assumption that there is no duty to give notice imposed on the executor either by the general law or by the special provisions of the will.’ Romer L.J. – perhaps the greatest of the three Romers who have been Lords Justices – observed (page 663): ‘It is clear that if the executor in this case had not also been the person entitled under the gift over it could not have been contended since Chauncy v. Graydon that there was any such duty cast upon him ... if [he] had not been the executor it could not have been said that there was any duty cast upon him in his position of devisee under the gift over. That being so, it is difficult to see how you can imply a duty because these two positions coalesce when neither of the positions involves such duty.’ Cozens-Hardy L.J. is to the same effect. This is, therefore, a very strong Court of Appeal, binding upon me, and entirely in accordance with other decisions, notably the decision of In Re Mackay[1906] 1 Ch 25 of Kekewich J—who, whatever may be said about him in other matters, was a great master of Chancery practice.”
“40. … Mr Hinks submitted to us that the reason why wills were open to public inspection was to ensure that effect was given to the wishes of the testator. No material was placed before us in support of such a submission other than a decision, over a century old, that supports the proposition, on the face of it a surprising proposition, that an executor owes no duty to inform a legatee of the terms of his legacy – Lewis v Lewis[1904] Ch 656 .”
“7. In principle, trustees and personal representatives are entitled to an indemnity out of the trust funds or estates which they control. Under the general law this appears in theTrustee Act 2000, section 31(1) , which provides: ‘A trustee – (a) is entitled to be reimbursed from the trust funds, or (b) may pay out of the trust funds, expenses properly incurred by him when acting on behalf of the trust.’ This is applied to the personal representatives of estates by section 35 of the same Act. [ … ] 9. … the meaning of the words used in section 31(1) is clear enough. The indemnity is available for expenses properly incurred on trust business. In the context of costs incurred in trust and estate litigation, however, there are special rules to be found in the CPR, both at rule 46.3 and also at paragraph 12 of the Practice Direction to Part 46. In Price v Saundry, Asplin LJ (again at [22]) described these as “a commentary upon and complementary to” section 31. I understand this to mean that these provisions implement the statutory indemnity in the litigation costs context. 10. The first of these two provisions is as follows: ‘46.3 (1) This rule applies where – (a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and (b) rule 44.5 does not apply. (2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate. (3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis.’ 11. The second provision reads as follows: ‘1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative (‘the trustee’) – (a) obtained directions from the court before bringing or defending the proceedings; (b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and (c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings. 1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally.’ 12. In Price v Saundry, Asplin LJ summarised the effect of all these provisions by saying: “24. The test for whether the indemnity is available or has been lost or curtailed is also the same undersection 31(1) of the 2000 Act and section 30(2) of the 1925 Act. It is best expressed in the form of two questions: were the expenses properly incurred?; and were the expenses incurred by the trustee when acting on behalf of the trust? The answer to those questions is often far from straightforward. They are dependent upon all the circumstances of the case.” 13. Asplin LJ then discussed certain authorities, and concluded: “29. All of this discussion brings one back to the question of whether the costs incurred by trustees in defending an action or arguing a point in the particular circumstances were expenses ‘properly incurred’ when acting on behalf of the trust. It seems to me that ‘properly incurred’ should be interpreted to mean ‘not improperly incurred’. This was the way in which Lindley LJ approached trustee indemnity in Easton v Landor (1892) 62 L.J. Ch 164 and in In re Beddoe, Downes v Cottam(1893) 1 Ch 547 . See also In re Grimthorpe Dec'd[1958] Ch 615 per Danckwerts J at 623. [ …] 31. It seems to me, therefore, that if a breach of trust causing loss to the trust fund or other misconduct is established against the trustee, the trustee may be deprived of his indemnity depending upon all the circumstances. Misconduct in this context should be construed widely to include not only misconduct in the sense of dishonesty but also conduct which is unreasonable in the circumstances. It does not extend, however, to a mere mistake on the part of the trustee: see Lewin on Trusts, 19th ed. para 27-112.” ‘A trustee – (a) is entitled to be reimbursed from the trust funds, or (b) may pay out of the trust funds, expenses properly incurred by him when acting on behalf of the trust.’ ‘46.3 (1) This rule applies where – (a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and (b) rule 44.5 does not apply. (2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate. (3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis.’ ‘1.1 A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative (‘the trustee’) – (a) obtained directions from the court before bringing or defending the proceedings; (b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee's own; and (c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings. 1.2 The trustee is not to be taken to have acted for a benefit other than that of the fund by reason only that the trustee has defended a claim in which relief is sought against the trustee personally.’ “24. The test for whether the indemnity is available or has been lost or curtailed is also the same undersection 31(1) of the 2000 Act and section 30(2) of the 1925 Act. It is best expressed in the form of two questions: were the expenses properly incurred?; and were the expenses incurred by the trustee when acting on behalf of the trust? The answer to those questions is often far from straightforward. They are dependent upon all the circumstances of the case.” “29. All of this discussion brings one back to the question of whether the costs incurred by trustees in defending an action or arguing a point in the particular circumstances were expenses ‘properly incurred’ when acting on behalf of the trust. It seems to me that ‘properly incurred’ should be interpreted to mean ‘not improperly incurred’. This was the way in which Lindley LJ approached trustee indemnity in Easton v Landor (1892) 62 L.J. Ch 164 and in In re Beddoe, Downes v Cottam(1893) 1 Ch 547 . See also In re Grimthorpe Dec'd[1958] Ch 615 per Danckwerts J at 623. [ …] 31. It seems to me, therefore, that if a breach of trust causing loss to the trust fund or other misconduct is established against the trustee, the trustee may be deprived of his indemnity depending upon all the circumstances. Misconduct in this context should be construed widely to include not only misconduct in the sense of dishonesty but also conduct which is unreasonable in the circumstances. It does not extend, however, to a mere mistake on the part of the trustee: see Lewin on Trusts, 19th ed. para 27-112.”
“13. Counsel referred me to a number of authorities spanning over 100 years of jurisprudence, from Re Buckton[1907] 2 Ch 406 which set out what became the conventional categories of claims by trustees when their costs liability falls to be considered, to Hanson v Coleman[2025] EWHC 116 (Ch) when the authorities were reviewed earlier this year, and many other decisions in between. I agree with Mr Poole that the most helpful and authoritative analysis is that of Asplin LJ in Price v Saundry[2019] EWCA Civ 2261 at paragraph [27]. Asplin LJ set out the three categories of cases: (1) what she termed a ‘trust dispute’, which is a dispute as to the trusts upon which the subject matter of the settlement is held, and which may be either ‘friendly’ or ‘hostile’ litigation, depending upon whether it is concerned with a matter such as the true construction of the trust instrument which is an issue that needs to be determined in the interests of all interested parties or a matter such a challenge to the validity of the trusts which pits the interests of some interested parties against those of others; (2) a ‘beneficiaries dispute’ where there is disagreement as to the propriety of any act or omission already taken or to be taken by the trustees in the future; and (3) a ‘third party’ dispute with persons other than in their capacity as beneficiaries, in respect of rights and liabilities assumed by the trustees as such in the course of the administration of the trust. 14. Asplin LJ also observed that trustees are entitled to an indemnity against all costs, expenses and liabilities properly incurred in administering the trust, including the bringing and defending of proceedings for the benefit of the trust estate, and have a lien on the trust assets to secure such an indemnity. Further, the trustees also have a duty to protect and preserve the trust estate for the benefit of the beneficiaries. However, a beneficiaries' dispute is usually regarded as ordinary hostile litigation in which costs follow the event and do not come out of the trust estate. 15. The categories identified by Asplin LJ in Price are similar to those that were identified by the court in Buckton. 16. As Master Brightwell said in Hanson v Coleman[2025] EWHC 116 (Ch) at [9], an opposed claim for the removal of a personal representative will frequently be a beneficiaries dispute, but it is necessary to assess the character of the proceedings and the positions adopted by the parties and their conduct in order to assess whether the proceedings should be seen as a hostile beneficiaries dispute or as a claim pursued for the benefit of the trust or estate. 17. It follows from the authorities that in cases which do not fall squarely within one or other of the three categories (and indeed even in some cases which do) it is necessary to examine the character of the proceedings and the positions and approaches of the parties in order to establish both whether the proceedings were 'hostile litigation' and whether the trustees acted reasonably in the proceedings and/or acted as they did pursuant to or consistently with their duty to preserve the trust estate. 18. As to the trustees' right of indemnity, it is stated in Lewin on Trusts (20th ed) at 48-004: ‘The general principle is that a trustee is entitled to indemnity in respect of costs and expenses properly incurred by him in connection with the performance of his duties and exercise of his powers and discretions as a trustee out of the assets of the trust in respect of which the costs were incurred.’ Further, at 48-005: ‘Even where he is unsuccessful, he is still in principle entitled to recover from the trust fund any costs he has been ordered to pay to the successful beneficiary.’ A trustee is entitled to recover under such an indemnity unless the court orders otherwise. Accordingly, the question which arises is whether in this case the court should order otherwise. 19. Lewin states at 48-006: ‘The right of a trustee to indemnity in respect of costs extends only to costs properly incurred in the execution of the trust. By this is meant costs which have been both honestly and reasonably incurred. A doubt is to be resolved in favour of the trustee, and so the right is sometimes expressed in terms of a double negative, that is, the trustee is entitled to costs not improperly incurred. The right of indemnity can be lost or curtailed by such inequitable conduct on the part of the trustee as amounts to a violation or culpable neglect of his duty as trustee.’ 20. Accordingly, a trustee loses her right to the indemnity in respect of costs and expenses which are improperly incurred. An example of such improperly incurred costs is those incurred by a trustee acting for her own benefit or for the benefit of some beneficiaries against others (see e.g. Lewin at 48-008). 21. As Mr Perrin submits, the fact that a trustee is ordered to pay the costs of another party to litigation does not mean that the trustee cannot recoup those costs and the trustees' own costs from the estate. In [sic] example of such a case is Jones v Longley[2015] EWHC 3362 .”
“15. [CPR rules] 44.4(2) and 44.4(3) draw a distinction between the difference in substance between a standard order for costs and an indemnity order for costs. The differences are two-fold. First, the differences are as to the onus which is on a party to establish that the costs were reasonable. In the case of a standard order, the onus is on the party in whose favour the order has been made. In the case of an indemnity order, the onus of showing the costs are not reasonable is on the party against whom the order has been made. The other important distinction between a standard order and an indemnity order is the fact that, whereas in the case of a standard order the court will only allow costs which are proportionate to the matters in issue, this requirement of proportionality does not exist in relation to an order which is made on the indemnity basis. This is a matter of real significance. On the one hand, it means that an indemnity order is one which does not have the important requirement of proportionality which is intended to reduce the amount of costs which are payable in consequence of litigation. On the other hand, an indemnity order means that a party who has such an order made in their favour is more likely to recover a sum which reflects the actual costs in the proceedings. The question of whether an order for costs on a standard or indemnity basis is made in litigation of the sort with which we are here concerned may be a matter of substantial financial significance … [ … ] 32. … there is an infinite variety of situations which can come before the courts and which justify the making of an indemnity order. It is because of that that I do not respond to Mr Davidson's submission that this court should give assistance to lower courts as to the circumstances where indemnity orders should be made and circumstances when they should not. In my judgment it is dangerous for the court to try and add to the requirements of the CPR which are not spelt out in the relevant parts of the CPR. This court can do no more than draw attention to the width of the discretion of the trial judge and re-emphasise the point that has already been made that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm. That is the critical requirement.”