Aslam v Seeley & Anor [2025] EWHC 24 (Ch)

This blog was co-authored by Annabel Lake and Claire Brierley.

This case concerned the removal of the executor of the estate of the late Mr Narayana Samy Madanagopalan (the “Deceased”) and how the executor’s legal costs were to be dealt with. The Judge was required to explore the question of exactly when an executor is entitled to recover their costs of proceedings from an estate.

Background

The Deceased died on 28 May 2020, leaving a valid Will dated 3 April 2020. By the Will, the Deceased appointed a family friend to be his executor (the “Claimant”). The Will disposed of the Deceased’s property only, leaving 30% to one of his daughters (the “First Defendant”),  50% to his other daughter (the “Second Defendant”), and the remaining 20% to be split between his grandchildren.

The Claimant applied to the High Court under Section 50 of the Administration of Justice Act 1985, requesting her removal as executor and replacement with an independent administrator. The application was made on the basis that the First Defendant would not cooperate with her and would not allow her to market and sell the property. The Claimant further stated that she felt harassed and threatened by the First Defendant.

Master Brightwell ultimately granted the Claimant her removal and appointed an independent administrator to continue with the administration of the estate.

The Parties Positions on Costs

The Claimant requested an order that her costs be paid from the estate on an indemnity basis as set out in Civil Procedure Rule (CPR) 46.3.

The First Defendant claimed that the Claimants’ costs were not all ‘properly incurred’ and should therefore not be paid by the estate.

The Second Defendant disputed the Claimant’s costs being paid from the estate and instead argued that;

1. The Claimant’s costs should be paid by the First Defendant, given it was her conduct which had necessitated the Claimant’s removal as executor; and
2. Had the First Defendant not made the administration difficult, it would have been a straightforward process, and costs would not have been incurred.

Applying the law

Section 31(1) of the Trustee Act 2000 provides that:

(1) A trustee/executor -

(a) is entitled to be reimbursed from the trust funds/estate, or

(b) may pay out of the trust funds/estate,

expenses properly incurred by him when acting on behalf of the trust/estate.

CPR 46.3 also provides that costs incurred by an executor must be properly incurred to be recoverable. When considering the position, the court will consider several factors:

• Whether the personal representative obtained directions from the court before initiating or defending proceedings.
• Whether the personal representative acted in the interests of the estate or trust rather than for personal benefit.
• Whether the personal representative acted unreasonably in bringing, defending, or conducting the proceedings.

The Claimants Costs

In this case, Master Brightwell determined that the Claimant was reasonable in bringing the claim, given the breakdown in the relationship and inappropriate conduct of the First Defendant. It was further stated that proceedings issued by an executor for their own removal because they are no longer properly able to act in the role are proceedings brought for the benefit of the estate. Consequently, the court ordered that the Claimants’ costs be paid by the estate.

The First Defendant's Costs

Maybe surprisingly, in the circumstances and given the result, Master Brightwell decided against making a costs order against the First Defendant and determined her costs could be taken out of the estate as ultimately, her conduct was not so severe as to justify shifting costs to her personally.

The Second Defendant’s Costs

In deciding upon the Second Defendants’ costs, the court considered two material questions:

• Were the proceedings necessitated only by the conduct of the First Defendant?
• Has the conduct of the First Defendant escalated the costs incurred in such a way that a costs order ought to be made against her?

Master Brightwell determined that proceedings were necessary as the Claimant could not remain a personal representative, and a hearing would always be necessary for the removal of an executor.

In terms of the First Defendant's conduct, whilst the claim could indeed have been dealt with at far less expense if it had not been opposed by the First Defendant, the Second Defendant’s costs were fairly limited, given she did not obtain legal representation for either hearing. Furthermore, the adjournment of one hearing was for the Claimant to obtain fuller costs information, which was not a result of the First Defendant’s unreasonable conduct.

Consequently, the court ordered that the Second Defendant’s costs be paid by the estate.

Final Comments

This case provides some insight into how a court may determine costs in the context of an executor’s removal when dealing with difficult beneficiaries and a breakdown in the relationship. The conduct of the parties can have a significant impact on determining such a claim. The ultimate costs decision in this case suggests that when considering an adverse costs order against a defendant, the alleged poor conduct has to be significant to displace costs being payable from the estate. Any beneficiary whose behaviour is stalling the administration of an estate and who then challenges the executor's costs in securing their removal will need to consider their conduct carefully.