Boothman & ors v Horsford & anr [2022] WTLR 1

Analysis

The claim sought removal of the defendants as executors of the estate of James and Agatha Horsford, who were the parents of the claimants and defendants.

The mother had died in December 2011 and the father had died in January 2014. It was common ground that the father’s estate was not fully administered. The claimants said this was an unconscionable delay. It was also said that the defendants had not properly accounted for their executorship and there remained outstanding questions as to what constituted his estate and what had happened to the monies within it. The defendants were said to have failed to provide an account and inventory, as earlier ordered by the court. Interim estate accounts had only been produced nine working days before the hearing. There remained outstanding matters and queries. There had been a total breakdown in relations between the claimants and the defendants. The claimants had put forward an independent executor. The claimants also complained that the defendants had appointed their own solicitors in the litigation to administer the estate.

In respect of the mother’s estate a copy of the will had now been provided and it had been confirmed that the father was the sole residuary beneficiary. Removal of the defendants as executors of the mother’s estate was no longer sought. The claimants maintained a claim for an order for an account.

The defendants opposed the removal application in respect of the father’s estate. Reliance was placed on the fact that they had been chosen by the father to administer the estate and that was to be the starting point for the court. The administration of the estate was said to be nearly completed. The involvement of an independent solicitor at this stage would inevitably lead to further expense. There would also be practical ramifications for the administration given that further assets of the estate included land in Antigua.

In respect of the claim to an account in relation to the mother’s estate it was said that the claimants lacked standing to pursue those claims.

Held:

1. 1) All that the claimants needed to show was a good arguable case that the defendants’ conduct was such as to trigger the court’s concern about the best interests of the beneficiaries, looking at their interests as a whole. The court did not need to find that misconduct was proven.
2. 2) It was clear that there was a marked degree of hostility between the claimants and defendants. It was not necessary for the court to determine the causes and reasons for this breakdown in relations.
3. 3) The two questions for the court were:
   1. a) Has a case been made out, as it were, on a provisional basis, justifying the removal of the defendants as executors?
   2. b) Are the countervailing factors such as to rebut or counteract the answer to which the court had come to under a)?
4. 4) The court considered that in relation to the first question the delay of seven years in relation to the father’s estate was the strongest point. Overall the full extent of the delay had not been justified by the defendants. Although interim accounts had now been produced it was not simply a question of tying up loose ends. More work was required in relation to the land in Antigua, looking at the expenses that the defendants were claiming, a missing cheque, and the defendants’ entitlement to an interim distribution which they had paid themselves. There was at least an arguable case that there were breaches of duty and a conflict of interest in the defendants reviewing expenses they were claiming. The appointment of solicitors to administer the estate did not resolve this as they would ultimately be taking their instructions from the defendants. There was a preliminary case for removal.
5. 5) Turning to the second question, it was accepted that there was a cost in appointing a professional executor, but it was comparatively modest and the estate was not trivial. It was not a sufficient countervailing factor. The submission that the administration of the foreign and domestic estates was close to complete was rejected. The possibility of further delays in Antigua was not sufficient, either in isolation or taken in the context of the other points made by the defendants, to tip the balance in favour of leaving the defendants in office. The fact that the father had chosen to appoint them to administer the estate had to be considered in the overall context and was not sufficient to justify leaving them in office. The claim for removal in respect of the father’s estate was granted.
6. 6) There could be no harm, and it may assist the independent executor, to order an account in respect of the father’s estate. Such an account would be ordered.
7. 7) In respect of the account relating to the mother’s estate, there were two bases to the court’s jurisdiction to order such an account:
   1. a) the executors’ rights to information about the mother’s estate were properly part of the father’s estate in which the claimants were interested as beneficiaries; or
   2. b) as the executors of the father’s estate had an obligation to check that the correct assets had been paid to them by the personal representative of the mother’s estate, the claimants had standing to challenge the executors over a failure to check the assets or acquire unpaid assets.
8. An account would be ordered in respect of the mother’s estate.

JUDGMENT MASTER PESTER: [1] I have before me an application dated 20 August 2020 by a Part 8 claim form. The claimants are four sisters, the defendants are firstly, the older sister of the family, Avril, and the party’s brother, Lauren. The application seeks the removal of the defendants as executors of the estate of …

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