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Court of Appeal rejects attempt by solicitors to restrict the rights of beneficiaries to challenge the legal costs of administering the Estate

The Court of Appeal yesterday handed down a long awaited judgment in the case of Kenig v Thomson Snell & Passmore and has dismissed the solicitors' appeal in which they argued that the rights of beneficiaries to challenge legal fees incurred by them under a will  in which they were retained by the sole executor were severely restricted.

The more the solicitors charge,  of course, the less money there is available for distribution to the beneficiaries.

First, although the starting point is that an assessment under section 71(3) is an assessment as between solicitor and client, I accept that the ultimate interest to be protected on an assessment under section 71(3) is that of the estate and/or the beneficiaries. Second, I consider it to be material that section 71(3)(b) makes express provision permitting an order that payments be made "to or by the applicant, to or by the solicitor, or to or by the executor, administrator or trustee", which underscores the broader nature of the enquiry under section 71(3) when compared with an assessment under section 70 or section 71(1). Third, it seems appropriate that separate consideration should be given to the position of the beneficiary and the estate in circumstances where the executor/trustee carries no risk because of their ability to pay the solicitor out of the trust property. Fourth, the decisions in In re Brown and Hazard v Lane both contemplated and allowed the beneficiary to challenge the bill even though an executor had approved it.

Lord Justice Stuart Smith, giving lead judgment at paragraph 57

The case will be particularly important in cases where  (unlike in the Kening case) the executor is a solicitor who has instructed his or her own firm to deal with the administration.

If you have been surprised by fees charged in an estate, which has reduced your legacy, get in touch for a free initial consultation. 

Heidi Molloy
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