Adrian John Gill v Malcom Kirk Gill

An executor may recover sums due to an estate where a surviving partner fails to account for the deceased partner’s interest, or where a beneficiary occupies estate property for personal business purposes. An executor must not profit from estate property or place personal interests in conflict with estate duties. However, breaches of duty will not support damages without proof that they caused the loss claimed. Court-authorised remuneration for executor services remains exceptional and should be granted sparingly. The court may approve final estate accounts subject to deductions from a beneficiary’s entitlement and credits for sums properly due to that beneficiary.

The claimant, sole executor of Rosemary Martha Gill’s estate, sought approval of final estate accounts and recovery of sums allegedly owed by the defendant, Rosemary’s son and former co-executor. The claim concerned losses associated with delay in removing a legal charge, the defendant’s liability for Rosemary’s share in a farming partnership, rent for his occupation of the farm, wayleave payments, and credits claimed for expenditure and improvements.

The defendant’s counterclaim had been struck out for failure to pay the correct court fee. The court therefore determined the claimant’s claim only, including whether the defendant’s conduct caused the alleged lost-sale losses and what adjustments were required to the estate accounts.

1. Legal charge and lost sales. The defendant was initially entitled to refuse removal of the legal charge because he was acting as deputy for a beneficiary of the charge and was also co-executor of Rosemary’s estate, creating a conflict in circumstances where there was no evidence that the underlying loan had been repaid. His later failure to resign as deputy and join an application to discharge the charge breached his executor duties. Those breaches did not cause the lost sales because he was removed as executor before the interest dispute prevented completion. The claim for those losses therefore failed.
2. Partnership interest. The New Farming Partnership dissolved on Rosemary’s death under section 33 of the Partnership Act 1890. Malcolm was responsible for winding it up under section 38, and the amount due for Rosemary’s share was a debt under section 43. By continuing the business as a sole trader, he crystallised a debt calculated by reference to the value of Rosemary’s interest at death. The outstanding balance was £25,362.
3. Occupation and receipts. Malcolm occupied the farm while continuing the business for his own benefit. He was therefore liable to pay rent from the date when the beneficiaries were seeking a practical arrangement, and remained liable as a trespasser for mesne profits after ceasing to be executor. The amount due was £51,644. He was also liable to account for £1,512 in wayleave payments.
4. Credits and remuneration. An executor is ordinarily entitled only to reimbursement of out-of-pocket expenses unless the will contains a charging clause. Although the court may authorise remuneration exceptionally, that power should be exercised sparingly. Malcolm was credited only with £240 for heating oil, £100 for house repairs, £200 for building repairs and £600 for the workshop. No further payment was justified.
5. The final estate accounts were approved subject to the judgment and any costs order. The sums due from Malcolm were to be deducted from his share of the estate, with interest on the partnership and rent liabilities at 2% simple to the date of sale.