In this case, Mrs. Hanson sought to remove her brothers as executors of their father’s estate due to conflicts of interests (the brothers claimed a greater share in the estate’s properties) and delays in administration – foolishly, the brothers attempted to cling onto their roles in furtherance of their own interests and in breach of their duties to the estate. On 21 November 2024, Master Brightwell ordered their removal and directed written costs submissions. 

Although the brothers did not dispute that their sister was entitled to her costs as the successful party to the litigation, they did argue that they were entitled to indemnify themselves from the estate in respect of their own and their sister’s costs, relying on s31 of the Trustee Act 2000 and an exemption clause in the will. The Judge (perhaps unsurprisingly) did not agree. 

The decision

The court ultimately ordered that the brothers had to pay their sister’s costs personally and that they could not rely on their indemnity or the exemption clause in the will that they should not suffer personal liability in fulfilling their executive function. 

The Judge ordered that they could not rely on an exemption clause because the estate had not yet suffered any loss.

This case offers a stark warning to any fiduciaries attempting to resist their own removal, particularly when there is a clear conflict of interest as there was in the case. Those conducting a fiduciary role are best served operating a neutral role in the event that their removal is sought and should always be alive to the cost risk of insisting on staying in office in furtherance of their own (beneficial) objectives.