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Have you ever considered the distinction between a solicitor executor and an executor who is a solicitor?

The High Court in London recently reviewed the circumstances where an executor is entitled to a professional fee for the administration of an estate.  


The testatrix, Mrs Brealey, made a will in March 2014. It was drawn up by one of the two partners in the defendant firm of solicitors. Under the will, her brother and “the partners at the time of my death in the firm of Shepherd and Co…” were to be the Executors. 

There was no express provision for the solicitor to be paid for acting as executor.  

Mrs Brealey died in April 2014. The defendant firm entered several retainers with the executors, including for the administration of the estate.


In the absence of a charging clause, or the express agreement of the beneficiaries, the entitlement could be derived only from one of the other two potential routes, section 29 of the Trustee Act 2000 or the Boardman jurisdiction.

Per Cavanagh J at [69]

Mrs Breadley’s will did not incorporate a charging clause, nor had the beneficiaries entered into an express agreement with the firm to vary this. Although the Trustee Act provides for out-of-pocket expenses, this does not extend to professional fees.

The House of Lords decision in Boardman v Phipps (1967) permits a court, in exceptional circumstances, to award remuneration to the trustee.

The fundamental difficulty… was that the Defendant did not place any, or any adequate, evidence before the Court to persuade him to exercise the discretion.

Per Cavanagh J at [147]


Appeal dismissed. This case was remitted to the Master to assess whether the costs charged by the Defendant represented fees for the services provided as executor. 

The distinction between a solicitor executor and an executor who is a solicitor is simple: a charging clause!

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