Taylor v Fairbairn

An executor must realise and administer an estate with all due despatch, but liability for delay requires proof of recoverable loss. A licensee’s authority to occupy property ends on the licensor’s death, yet possession does not thereby become trespassory. A demand for possession or rent is required, especially where possession has been acquiesced in. Works undertaken by an executor under an authorised power of management may be recouped from the estate when properly proved and beneficial to the property. Equitable accounting principles applicable between co-owners do not govern interests in an unadministered estate.

The parties were co-executrices and equal beneficiaries under their father’s Will. The Defendant occupied his former home before his death, carried out works there, and remained in occupation after death. The Claimant alleged delay in selling the property, claimed an occupation rent, and sought recovery of cash withdrawals. The Defendant claimed recoupment of expenditure, repayment of mortgage interest, and a contribution in respect of a loan made to the Claimant’s partner.

The court determined whether the Defendant was liable for delay and occupation rent, whether expenditure was recoverable from the estate, whether the loan claim was maintainable against the Claimant, and how the cash withdrawals should be accounted for.

The court dismissed the Claimant’s claim for compensation for delay, rejected the claim for occupation rent before 5 January 2006, rejected the Defendant’s loan counterclaim, allowed recoupment of specified expenditure and mortgage interest, and ordered accounts concerning the cash withdrawals.

1. The executors were under a duty to realise and administer the estate with all due despatch. The Defendant was not responsible for delay before 29 September 2005. After the breakdown of negotiations, a sale should have proceeded within a reasonable time, and the Defendant was in breach from January 2006. The Claimant nevertheless failed to prove recoverable loss exceeding the increase in the property’s value during the period of delay.
2. The Defendant entered occupation with the deceased’s consent and on a rent-free basis. Death terminated the licence, but did not by itself make her a trespasser. A demand for possession or rent was required. Until the Claimant’s demand of 5 January 2006, possession had been tolerated and acquiesced in. No occupation rent was therefore payable before that date.
3. Equitable accounting authorities such as In re Pavlou and Byford v Butler concerned co-owners and did not apply to the parties’ interests in an unadministered estate.
4. Works undertaken before death were not recoverable because they were undertaken at the Defendant’s own expense without any foundation in contract or unjust enrichment. Works after death fell within the authority conferred by clause 3(2) of the STEP provisions and were recoverable where proved and beneficial to the property. The court allowed £8,974.42, together with mortgage interest paid from death.
5. The £20,000 loan was made to Mr Lorman, was neither repaid nor waived, and could not be recovered from the Claimant, who was not the borrower. The Defendant was entitled to an account of the remaining £1,992.96 from the cash withdrawals and was debited with £1,850.

First-instance judgment. No earlier appellate decision is stated in the judgment.