Gavriel & anr v Davis [2022] WTLR 943

Analysis

The claimants were the only beneficiaries of the estate of the deceased, who died in May 2016. The defendant executor in December 2016 obtained probate of the deceased’s will, which did not authorise remuneration of executors or trustees. Upon completion of the administration, the defendant sought to impose a charge of £27,300 for her time in administering the estate.

The claimants brought proceedings under CPR 64 seeking directions as to whether the defendant was entitled to remuneration. In her evidence in response, the defendant asserted an oral agreement with the claimants that she would charge an hourly rate, which the claimants denied. Alternatively, the defendant relied upon estoppel by convention or unjust enrichment as grounds to recover her fees.

The issues to be determined were:

1. (1) Was the defendant entitled to have the factual issue of the alleged oral agreement resolved at trial?
2. (2) In default of an express agreement with the claimants, was the defendant entitled to remuneration on the basis of estoppel by convention and/or unjust enrichment?

Held:

1. (1) CPR 8.6 provides that each party should file and serve the evidence upon which they intend to rely at the outset of proceedings; it is not, as a general rule, open to either party to assert that they have further evidence to give on the matters in issue. It is therefore open to the court to determine a Part 8 claim at a first disposal hearing, even where there is a dispute of fact, if the court concludes that one party’s case fails to meet the threshold set out in CPR Part 24, meaning that the evidence relied upon is fanciful.
2. (2) The starting point is that, in the absence of a charging clause in the will, an executor is not entitled to remuneration. Exceptions to that rule are:
   1. (i) where there is agreement with all interested beneficiaries; and
   2. (ii) where the court authorises remuneration – Boardman v Phipps [1966].
3. (3) There was no agreement for remuneration. The defendant’s evidence as to the alleged oral agreement was incoherent and failed to meet the required threshold. Although there was no obligation to provide written terms of business, it was now entirely axiomatic that a person undertaking a professional service should do so, setting out their proposed charging rates and an estimate of likely fees. The absence of such written terms, together with the contemporaneous documentation, was inconsistent with any oral agreement having been reached.
4. (4) Estoppel by convention required clear evidence of a mutual understanding. The defendant’s evidence did not set out such a mutual understanding for the same reasons.
5. (5) The question whether unjust enrichment might have arisen really turned upon whether the self-dealing rule had been displaced. It had not; therefore the enrichment was not unjust.
6. (6) The jurisdiction under Boardman (above) was discretionary and one to be exercised sparingly. The court may have regard to the services provided and the possible unjustness of one party having undertaken work from which the other takes the benefit. Had the defendant approached the court in a less combative manner, setting out her professional qualifications and without engaging concerns as to her integrity, the court might have been willing to exercise its discretion. In light of the entirely unsatisfactory nature of her evidence, it would be wrong to do so.

Judgment accordingly.

JUDGMENT CHIEF MASTER MARSH: [1] This is my judgment following the disposal hearing of this Part 8 claim which concerns the estate of Charalambos Tryfon Gavriel who died on 25 May 2016. He left a will dated 8 July 2012. The will is simple. He left his entire estate to his two sons, Nicholas and …

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