Master Brightwell has twice considered who should pay the costs of an application to remove executors in the last few months.
In Aslam v Seeley & Another [2025] EWHC 24 (Ch) the claimant, a family friend of the Deceased was appointed as executor. The defendants were the Deceased’s two daughters and beneficiaries in the estate.
The claimant, unusually, sought her own removal on the basis the first defendant would not co-operate with her to enable the property in the estate to be marketed and sold, and the claimant felt threatened and harassed by her. The Master considered the circumstances justified the appointment of a new personal representative and ultimately appointed an independent professional to take on the role.
The claimant sought her costs of the claim to be paid out of the estate on the indemnity basis as executor. The second defendant argued that the claimant’s and her costs should be paid by the first defendant given her conduct caused the issues and delayed the administration of the estate.
In Hanson v Coleman & Anor (Re Costs) [2025] EWHC 116 (Ch) Master Brightwell returned to these issues in another application to remove executors.
This claim concerned two executors and beneficiaries who asserted larger shares in property in the estate contrary to other beneficiaries’ interests, and who actively argued the point until well into the litigation. The court again ordered that executors be replaced by an independent professional and they accepted they would have to pay the costs as the losing party to the litigation. The question before the Master was whether the losing executors should be indemnified for their costs liabilities out of the estate.
In both cases Master Brightwell referred to the judgment of Asplin LJ in Price v Saundry [2019] EWCA Civ 2261 and the comments on a personal representative’s indemnity for costs of litigation and that in summary that this derives from section 31(1) of the Trustee Act 2000, and is detailed within the CPR at part 46.3, and 46PD.1. In short, it is that the court cannot deprive executors of their indemnity out of the estate for costs or other expenses or liabilities which they have incurred for the estate unless they have incurred them improperly.
The Master also referred to Green v Astor[2013] EWHC and the categories of trust/estate disputes as set out in Re Buckton [1907] 2 Ch 406 and their different costs position. In particular the difference between litigation brought for the benefit of an estate or beneficiaries as a whole (where the costs of all parties will be paid from the estate), or “hostile” beneficiaries’ disputes, where the usual costs rules will apply, and so generally the loser will pay the winner’s costs.
Master Brightwell also stated that
The Master concluded that the court must assess the character of the proceedings and the positions adopted by the parties and their conduct within them, rather than their form, in order to assess whether the proceedings should be seen as a hostile beneficiaries' dispute (i.e. with costs determined in accordance with CPR r 44) or as a claim pursued for the benefit of the trust or estate (with costs payable from the estate).
In Aslam, the Master allowed most of the claimant’s costs to be paid out of the estate under her indemnity as executor, and could find no criticism of her actions, or wish to be removed in the circumstances.
Further, even though he found the first defendant had been unreasonable in causing many of the problems in the estate, he considered an application to court was necessary, and that her conduct during the litigation did not actually amount to causing any significant increase in the costs despite some of what she had said having certainly been insulting.
In Hanson however, the case was different. The Master concluded that the defendants had defended the claim in their own interests and unreasonably and this was fundamentally the cause of the dispute. The court ordered that the defendant’s pay the claimant’s costs, and that they be deprived any indemnity from the estate.
Depending on the circumstances, and a person’s attitude to risk and benefit, when considering applications to remove executors, administrators or trustees, parties will need to consider carefully how to approach the court, and whether to do so excepting the application was a necessary step in the administration, and that the costs should likely all come out of the estate, or in a more hostile manner, aware of the potential risks on costs if they are to get their position wrong.
Given those risks, it is important therefore for parties to take legal advice as early as possible in such a dispute.
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