Sharon Marie Hudman (as executrix of Barry Leonard Morris deceased and in her personal capacity) v Alan Wayne Morris (as executor of Barry Leonard Morris deceased and in his personal capacity)

JurisdictionEngland & Wales
JudgeMaster Clark
Judgment Date01 June 2021
Neutral Citation[2021] EWHC 1400 (Ch)
CourtChancery Division
Docket NumberCase No: PT-2020-000516
Date01 June 2021

[2021] EWHC 1400 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES (ChD)

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

Master Clark

Case No: PT-2020-000516

Between:
Sharon Marie Hudman (as executrix of Barry Leonard Morris deceased and in her personal capacity)
Claimant
and
Alan Wayne Morris (as executor of Barry Leonard Morris deceased and in his personal capacity)
Defendant

Nathan Wells (instructed by Gardner Leader LLP) for the Claimant

Matthew Wales (instructed by JCP Solicitors) for the Defendant

Hearing date: 12 May 2021

Approved Judgment

I direct that this approved judgment, sent to the parties by email on 27 April 2021, shall deemed to be handed down on that date, and copies of this version as handed down may be treated as authentic.

Master Clark
1

This is my judgment in a Part 8 claim seeking the removal of the defendant as executor under s. 50 of the Administration of Justice Act 1985, alternatively that he be passed over as executor pursuant to s.116 of the Senior Courts Act 1981.

2

The claim concerns the estate of Barry Leonard Morris, who died on 2 February 2019, in his early 90s, leaving a will dated 10 April 2013 (“the Will”). The Will divides his residuary estate between his 5 named children: Alan Morris, Sharon Hudman, Roger Morris, Kim Morris and Karl Morris (to whom I refer by their first names). It makes no provision for the deceased's (third) wife, stating that the deceased considers that she will be adequately provided for from her own assets. Alan and Sharon are the executors of the Will.

3

Sharon is the claimant. Alan is the defendant, whose removal is sought. Kim, sadly, died before the deceased. Sharon is supported in her claim by the remaining siblings and by Kim's son Aaron, who takes his father's share under the Will.

4

Sharon seeks the appointment of an independent administrator. She does not accept that there are any grounds for her removal, but is willing to step down if Alan is removed. Alan resists his removal. Although there is no formal counterclaim, he seeks Sharon's removal, and the appointment of an independent administrator to act with him.

5

This case is regrettably yet another example of Tolstoy's observation that each unhappy family is unhappy in its own way. It is common ground that Alan and his siblings are completely estranged. This family's dysfunctionality has resulted in legal costs that are on any basis disproportionate to the size of the estate and the nature of the disputes. As set out below, the deceased's estate has already been burdened with nearly £100,000 in costs of disputed Court of Protection proceedings, reducing the net estate to about £350,000. The claimant's costs of this claim total £87,102.00 (inc. VAT); the defendant's £36,600 (inc. VAT); making a total of £123,702.

Background

6

I set out as briefly as possible the background to the claim. As is usual in the final hearing of claims under s.50, all the evidence was in written form, and there was no oral evidence. The evidence comprised:

(1) Sharon's witness statement dated 7 July 2020

(2) the witness statement dated 30 June 2020 of Nia Wharry (Sharon's proposed personal representative)

(3) Alan's witness statement dated 7 August 2020

(4) the witness statement dated 6 August 2020 of James David Jones (Alan's proposed personal representative).

7

In July 2013, the deceased was diagnosed with dementia of mixed aetiology. In May 2014, the deceased's brother, Alan Denzil Morris (“the Uncle”), who lived in Australia, died intestate, and the deceased became entitled to about £300,000 from his estate. Roger says (in an email dated 2 May 2018) that the deceased asked him to go to Australia to help deal with that estate, and to bring back mementos. This is supported by contemporaneous correspondence. It is also evidenced by a document entitled “Summary of NPTCBC involvement with [the deceased]”, exhibited to the witness statement dated 28 February 2017 of Sean Haran (a Community Social Worker) made in the Court of Protection proceedings referred to below. This records the deceased's solicitors informing Mr Haran's colleague on 1 August 2014 that Roger would be going to Australia on the deceased's behalf. Alan disputes that the deceased asked Roger to go to Australia on his behalf, or agreed to pay the costs of the trip.

8

In August 2014, Roger travelled to Australia for 2 weeks. His expenses for that trip (“the Expenses”) total £2,836.48.

9

On 11 January 2016, the deceased executed a Lasting Power of Attorney (“the LPA”) in respect of his property and affairs in favour of Alan. The other children were unaware of this. When Roger found out about it, he applied, on 26 June 2016, to the Court of Protection (“COP”) to revoke the LPA, and for the appointment of a deputy for property and affairs for the deceased.

10

At the initial directions hearing on 11 January 2017 in the COP, Alan accepted that a deputy should be appointed for the deceased in respect of his property and affairs, and health and welfare. Necessarily, this would have involved revoking the LPA.

11

However, in his witness statement dated 24 May 2017 in the COP proceedings, Alan resiled from this position, and opposed the appointment of a deputy. By 9 August 2017, he had again changed his mind, and was willing to retire as attorney and disclaim the LPA. By a consent order made on that date, the COP formally revoked the LPA, appointed Nigel Jones of JMD Law (“the Deputy”) as the deceased's deputy for his property and affairs, and ordered Alan's and Roger's costs (to be assessed) to be paid from the deceased's funds. This order included the grant to the Deputy of authority to:

“reimburse [Roger] for expenses incurred by him in travelling to Australia in August 2014 if the Deputy considers it is in [the deceased's] best interests to do so.”

12

On 11 September 2017, the COP made a further order which again appointed Mr Jones as deputy (it is unclear why this was ordered again), and conferred authority on him to expend such sums as he considered reasonable having regard to all the circumstances on, amongst other things,

“the reimbursement of [Roger] for sums already incurred by him in travelling to Australia in August 2014 in connection with matters relating to the estate of [the Uncle].”

13

The costs of the COP proceedings were considerable:

Roger's assessed costs

£52,790

Official Solicitor's costs

£12,351.60

Alan's assessed costs

£8,556.58

Deputyship costs

£25,869.84

Total

£99,568.02

14

In March 2018, a Best Interests meeting was held to decide whether the deceased (by then aged 91) should continue to live in his own home. It was decided that the deceased should move to residential care. Alan and Kim disagreed with this.

15

On 1 October 2018, Kim died. 4 months later, on 2 February 2019, the deceased died. Shortly thereafter, Sharon instructed Mr Jones's firm, JMD Law, to act on her behalf in the administration of the estate. Mr Jones wrote to Alan asking whether he would agree to him (Mr Jones) acting on his behalf in applying for probate. Alan's reply fell short of agreeing to instruct Mr Jones, but did agree to engage with him on those matters.

16

On 14 March 2019, Mr Jones in his capacity as former Deputy, wrote to Sharon and Roger confirming that he had been about to make the formal decision that Roger should be reimbursed the Expenses (having heard representations from both sides), but that before he could organise the payment, the deceased had died.

17

It would appear that on 5 June 2019, JMD Law sent Alan a letter of engagement (this was not in the bundle), enclosing an authority to act; and that although Alan raised various queries and objections, he did ultimately instruct them.

18

On 28 August 2019, JMD Law produced interim estate accounts. These showed (as item 3) the Expenses as a liability of the estate. Alan's response to this in his email of 17 October 2019 was vigorous:

“I do not regard item 3 (i.e. Roger Morris – Administrator's Expenses) to be a liability to [ sic] the Estate – as this is not justified/tantamount to financial abuse/potentially fraudulent (!) and I instruct you to remove this accordingly.”

19

JMD Law replied on 12 November 2019 stating that their advice was to include the Expenses as a debt of the estate at the stage of applying for probate, since it had been notified. Alan was unwilling to accept this advice, and in his email of 26 November 2019 set out a number of grounds on which, he said, the Expenses were not payable. He confirmed his position in an email of 17 December 2019.

20

On 19 December 2019, JMD Law terminated their retainer on the grounds that the instructions of the two executors were contradictory.

21

This claim was commenced on 8 July 2020. The details of claim state that its basis is that Alan, by his words and conduct, has shown that he cannot be expected to carry out the administration of the deceased's estate fairly, properly and effectively in the interests of all the beneficiaries. Specific grounds are set out which can be summarised under the following headings:

(1) Hostility by Alan towards Sharon, Roger and Karl;

(2) Hostility by Alan towards Aaron; Alan telling Aaron that his father, Kim, did not want him to benefit from the deceased's estate;

(3) Alan's previously expressed doubts as to the validity of the deceased's will;

(4) Delays by Alan in the instruction of JMD Solicitors and preparation of the application for probate;

(5) Alan's refusal to agree to the Expenses claim;

(6) Alan's conduct as the deceased's attorney under the LPA;

(7) Alan seeking payment of his Court of Protection costs from the estate without first obtaining an assessment – following assessment of Alan's costs, this ground is no longer relied upon;

(8) The wishes of all the beneficiaries other...

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