Gavriel & Anor v Davis

An executor cannot charge for services where the will contains no charging clause unless the beneficiaries agree or the court authorises remuneration. The court’s equitable jurisdiction to authorise payment is exceptional and must be exercised sparingly, having regard to all the circumstances, including the executor’s honesty and whether it would be inequitable for the beneficiaries to retain the benefit of the work without payment. A claimed oral agreement or estoppel must be established by clear evidence. Where the self-dealing rule remains in force, unjust enrichment does not provide an independent basis for remuneration.

The claimants were beneficiaries under their late father’s will. The defendant, the executrix, had obtained a grant of probate and administered the estate, which contained no charging clause. She sought approximately £27,300 for her work. The claimants sought directions under CPR Part 64, denying that any agreement or concluded understanding permitted remuneration.

The defendant alternatively relied on estoppel by convention, unjust enrichment and the court’s equitable jurisdiction to authorise remuneration. The court also considered whether any HMRC penalty or interest should be charged personally to the defendant.

1. Disposal hearing. The court was entitled to determine the Part 8 claim at a disposal hearing where, applying an evaluation comparable to the CPR Part 24 threshold, the defendant’s evidence of an agreement was fanciful. The existence of apparent factual disputes did not require a trial where the evidence could safely be evaluated.
2. Remuneration and agreement. In the absence of a charging clause, an executor is not entitled to remuneration beyond reimbursement of out-of-pocket expenses. The recognised exceptions are court authorisation and an agreement between the executor and beneficiaries. The communications did not establish any agreement, including an agreement to charge on a reasonable basis, or any concluded understanding as to the basis of charging.
3. Alternative claims. The evidence was insufficient to establish estoppel by convention, which required clear evidence. Unjust enrichment did not create an independent entitlement: unless the self-dealing rule had been displaced, the enrichment could not be unjust.
4. Equitable jurisdiction. The jurisdiction identified through Boardman v Phipps [1966] UKHL 2 is exceptional and must be exercised sparingly. The court could consider the services provided, the benefit obtained and whether it would be inequitable for the beneficiaries to retain that benefit without payment. It also had to consider all the circumstances, including the defendant’s honesty. Although the defendant’s work had produced a substantial saving for the estate, the court declined to exercise the discretion because her evidence was wholly unsatisfactory.
5. HMRC charges. The evidence did not establish that a penalty had been imposed. No adjustment was therefore made for penalty or interest.