Liu v Matyas

When appointing a substitute professional executor, the court must assess the candidates in the round and choose the person best suited to administer the particular estate. Relevant considerations include experience, contentious probate expertise, availability, locality, special features, the estate’s value and complexity, ongoing trusts or relationships, beneficiaries’ wishes and cost. Cost is especially significant where other factors are evenly balanced. Hourly rates may therefore determine the appointment where the estate is relatively modest and straightforward and no reliable comparative estimate is available.

The claimant sought the removal of the defendant as executor of the deceased’s will under section 15 of the Administration of Justice Act 1985 or, alternatively, section 116 of the Senior Courts Act 1981. During the proceedings the defendant consented to the appointment of an independent solicitor in place of the parties. The remaining issue was whether Mr Daniel or Ms Bagha should be appointed as substitute executor, together with costs.

The estate principally comprised three properties and several bank accounts. The court considered the candidates’ experience, the estate’s nature and complexity, the beneficiaries’ position and the competing charging rates.

1. The court had to select, in the round, the solicitor best suited to administer this particular estate. The assessment was a matter of fact and degree, and depended on the factors present in the individual estate.

2. The relevant factors included: knowledge and experience; contentious probate experience; availability; locality; special features of the estate and beneficiaries; the value and complexity of the assets and liabilities; any ongoing trusts; continuing relationships; the wishes of beneficiaries; and costs.

3. There was little difference between the candidates in experience, availability, locality, contentious probate ability or suitability for the estate’s international features. The estate was not especially complex or of high value, and there were no ongoing trusts or relevant continuing relationships. The beneficiaries’ wishes did not assist because the evidence did not establish their preference between the candidates.

4. Cost was a material consideration. Because there was no reliable, comparable estimate of total fees, the court had to give significant weight to the hourly rates. Since the candidates’ knowledge and experience were effectively comparable, and there was no need for a City firm with substantial overheads, the lower rate offered a financial advantage to the estate.

5. Ms Bagha was accordingly appointed professional solicitor executor. The defendant’s consent to the appointment of an independent solicitor resolved the removal issue. The judgment does not state a separate final costs order.

This was a first-instance disposal hearing. The judgment records earlier procedural orders by Master Kaye and Deputy Master Lloyd, including directions concerning evidence, cross-examination and hearing dates.