Administration expenses – Mussell v Patience [2018] EWHC 430 (Ch)

This case concerned the vexed question of solicitors’ costs of administering an estate paid from the estate.

There were four residuary beneficiaries (the deceased’s four children): C1 was one of them, and D1 and D2 were two of the others. C1 and his co-executor C2, a solicitor, sought an order approving their accounts (already approved by the fourth beneficiary) and distribution on that basis. D1 and D2 objected to the accounts, including on the basis that the information provided to them in support of invoices paid to C2 was insufficient for them to assess whether the charges were reasonable.

The judge concluded that an executor is entitled to pay expenses from the estate provided he can show (1) that the sum concerned was indeed spent (normally demonstrated by the ‘voucher’ for payment), and (2) that it was spent in the fair execution of the estate administration (normally demonstrated by a document such as an invoice referring to the executor as such, and to administration of the estate or to some good or service having a connection with the estate): a presumption of payment arises from establishing such facts, albeit this may be rebutted by the beneficiary by evidence.

Such approach rather begs the question of whether the disputed expense was ‘expended in fair execution’ of the administration; it is difficult to see (i) how such a test could shift the burden of proof from the person propounding the propriety of the expense, i.e. the executor, and (ii) how a beneficiary could rebut the presumption if there is no obligation on the executor to disclose the number of hours worked or the hourly rate used to arrive at the total charged, or give a detailed breakdown of exactly what work was done in support of their accounts.

If the decision is followed, it appears that it is harder than may have been thought to be the case for a residuary beneficiary to satisfy himself that his benefit has not been reduced by improper solicitor’s administration charges if there is no lay executor, or no lay executor willing, to perform this task on his or her behalf.

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