Approved Judgment Fraser-Andrews and others v Menezes
IN THE COUNTY COURT AT BATH Case Number: L30YY076
Before:
DISTRICT JUDGE FENTEM
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Between:
(1) JOHN FRASER-ANDREWS (AS EXECUTOR OF THE ESTATE OF BETHAN FRASER-ANDREWS)
(2) SHELAGH CARPENTER
(3) ROY HANCOCK
Claimants
and
ROYCE MENANTIUS MENEZES (AS EXECUTOR AND ADMINISTRATOR OF THE ESTATE OF DOROTHY HINDS)
Defendant
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Mr Pankhurst (instructed by Middleton & Upsall LLP) for the Claimant
TheDefendant as a litigant in person
Hearing date: 12 November 2025
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APPROVED JUDGMENT
I direct that pursuant to CPR r.39.9(1) no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
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Introduction
Dorothy Hinds died on 30 March 2018 aged 92. On her death, she left a will executed on 9 November 2017 (which for reasons which will become obvious I describe as the 2nd Will). For material purposes, the 2nd Will:
Appointed Middletons Solicitors of Warminster as the executors of her estate;
Bequeathed a pecuniary legacy of £8,000 to Royce Menezes, D; and
After payments of debts and IHT, bequeathed her residuary estate to Shelagh Carpenter, Bethan Fraser-Andrews and Roy Hancock in equal shares. The first and third of those are the Second and Third Claimants (C2 and C3); Mrs Fraser-Andrews is now deceased, but her estate is represented in these proceedings by the First Claimant. I will use ‘Cs’ interchangeably to mean Mrs Fraser-Andrews, C2 and C3, or all 3 present Cs, as the circumstances necessitate.
The Defendant (D) immediately challenged that will, lodging a caveat against the grant of probate on 23 April 2018. He appears to have contended that Mrs Hinds lacked testamentary capacity when it was made. His position was that Mrs Hinds’ true testamentary intentions were encapsulated in an earlier will made on 12 April 2013 (the 1st Will). By that will:
D was appointed executor;
D was given a specific legacy, namely Mrs H’s property at 1 Cheyney Walk, Westbury;
By clause 4, Mrs Fraser-Andrews was given a pecuniary legacy of £2,000 and one Ben Hale was given a legacy of £1,000; and
The residue of the estate was given to D.
Cs say that the dispute between the parties about the validity of the 2nd Will was resolved before it reached court. It is clear that there was voluminous communication between Cs’ solicitors Middleton & Upsall LLP (Middletons) and D’s solicitors Tollers LLP (Tollers).
Cs’ case is that the parties executed a Deed of Variation (DOV) which had the effect that D became obliged to honour as executor a gift of £30,000 to each of Cs out of available funds in the estate (the Legacy Claim), that D agreed to pay them the sum of £42,627.68 from the estate for the costs of administering it and for work done for the deceased during her lifetime (the Costs Claim), and that the estate is liable to C2 for expenses in maintaining 1 Cheyney Walk (£1.545.93) and to Cs generally for disbursements relating to the estate (£1.197.88) (together, the Expenses Claims).
There was considerable delay in the administration of the estate. A grant of probate was obtained on 13 April 2024, meaning that the usual ‘executor’s year’ expired a year later. None of the sums that Cs consider they are entitled to has been paid to them. Cs issued a claim on 31 December 2024 for the Legacy Claim, the Costs Claim and the Expenses Claims as a debt. D filed a defence, acting then as now in person, on or about 27 January 2025, denying the claim.
On 12 March 2025, Cs applied for summary judgment against D. D responded by an application dated 18 March 2025 seeking dismissal of C’s application. That is an unnecessary application: D does not need to apply, and should not have applied, for dismissal of an application; he needs only to respond to the application made by evidence. I dismiss his application dated 18 March 2025 without further consideration. For clarity, that is not a decision on the merits on his opposition to Cs’ application.
On 6 August 2025, DJ Elboz set the application down for a hearing on 12 November 2025. I heard the application and reserved judgment. In the course of the application, Mr Pankhurst (Counsel for Cs) indicated that he pursued the application only in relation to the Legacy Claim and the Costs Claim. The Expenses Claims therefore are not the subject of this judgment.
The Law
CPR 24.3 provides that:
‘The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if—
it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial’.
In Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) (approved by the Court of Appeal in AC Ward & Son v Catlin (Five) Ltd [2009] EWCA Civ 1098), Lewison J said (adapted to reflect the identity of the applicants and respondent in this case):
‘The correct approach on applications [for SJ] is, in my judgment, as follows:
i) The court must consider whether the [defendant] has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success…
A ‘realistic’ [defence] is one that carries some degree of conviction. This means a [defence] that is more than merely arguable…
In reaching its conclusion the court must not conduct a ‘mini-trial’…
iv) This does not mean that the court must take at face value and without analysis everything that a [defendant] says in his statements before the court. In some cases, it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents…
However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial…
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case…
On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction…’
The Evidence
I was presented by Cs with about 600 pages contained in two files, consisting of the pleadings and the documents appended to them, a vast array of correspondence and various miscellaneous documents. In response to DJ Elboz’s order, D filed a lever-arch file of documentation. No party filed a witness statement, but each relied on their statements of case and (with respect to Cs) the information in the N244 form.
I have read all of these files, but I was addressed on very little of the documentation contained in the bundles. Most of it was irrelevant to the issues I have had to decide.
I was addressed in turn on the Legacy Claim and the Costs Claim. As I will explain, however, they are intertwined. The parties must therefore appreciate that I will be forced to consider them in tandem at certain points of this judgment.
The Legacy Claim
Following the dispute about the validity of the 2nd Will, all of the parties executed (as a deed) the DOV. That document is undated, but its formal validity has not been questioned, and it is not suggested that it was otherwise than signed and delivered as a deed. From the documents I have seen, it must have been signed by all parties by 26 October 2020. On 12 August 2020, Middletons sent a copy signed by Cs to Tollers, who eventually responded on 26 October 2020 saying ‘Further to our telephone conversation, our client has signed the deed of variation, which has been sent to your office’. It appears that it was either not sent or not received then, because as late as 17 February 2022 Middletons were still asking for a copy. Eventually, on 23 May 2022 Tollers sent a signed copy to Middletons.
After reciting the history of the matter, the DOV reads as follows:
‘(1) It is hereby agreed and declared that the Will of the Testator [defined as the 1st Will] shall be construed and take effect and be deemed to have taken effect as from the death of the Testator as if the Testator had substituted clause 4 with the following clause:
“4(a) I give the following pecuniary legacies free of inheritance tax:
The sum of thirty thousand pounds (£30,000) to Bethan Fraser-Andrews of [address].
The sum of thirty thousand pounds (£30,000) to Shelagh Carpenter of [address].
The sum of thirty thousand pounds (£30,000) to Roy Hancock of [address].
The sum of one thousand pounds (£1,000) to Ben Hale of [address].
4(b) I give the remainder of my estate hereby not otherwise specifically disposed of (out of which will be paid my funeral and testamentary expenses, my debts, the aforementioned legacies and any inheritance tax) to Royce Venantius Menezes of [address].”
For the avoidance of doubt, the other provisions of the Will shall have effect in so far as they are consistent with this variation.
The Executor [C] undertakes to administer the Estate in accordance with the variation made by this Deed…’
As Mr Pankhurst rightly argues, a will cannot strictly be varied after the testator’s death; the person who could have varied it is no longer able to do so. A DOV such as this takes effect, if at all, in contract (subject to the law applicable to deeds). It takes the form that it does because of guidance given by HMRC as to what is acceptable for IHT or other purposes. The DOV could only affect the relationship of the parties as between themselves. It has no effect on third parties, including on the rights of Mr Hale who was not a party to it (and was the only other named beneficiary of) the 1st Will.
D accepts that an offer was made and accepted to resolve the dispute in part by the payment of £90,000 in total to Cs. However, he orally argued that the DOV was of no effect because a separate Settlement Agreement was not signed. In his Defence on this point, he says:
‘In an attempt to avoid a lengthy and costly court case, for both sides, the matter went to mediation at which point all parties agreed that [D] had proved the validity of the [1st Will] and the [2nd Will] would be disregarded. [D] was reassured by the solicitors for both parties that this would be quicker than going to court, to avoid further stress, which had been significant for [D], but it has not been the case.
As part of the desire to bring proceedings to a quick conclusion, [D] made an offer of goodwill, which was neither required nor warranted, to [Cs] as set out in the [DOV] which was signed by all parties. The DOC did not detail any other payments to [Cs] other than £30,000 each. [Cs], not satisfied with an already generous goodwill offer, then attempted to change the terms further by attempting to negotiate a Settlement Agreement which would require the legal fees of [Cs] to be covered. The terms of the settlement were not acceptable to [D] and no satisfactory resolution could be found. As a result, [D] declined to sign the Settlement Agreement and, ergo, did not enter into any legally binding agreement as stated [in relation to the Costs Claim]. As no such agreement was formalised or legally binding the dates for alleged payments prescribed in [the Costs Claim] have no standing.’
Although his Defence is verbose and in many respects raises matters not relevant to the resolution of the dispute, it is clear from his written response to the Legacy Claim that he accepts that a contractual obligation was created by the DOV. He was in my judgment right to do so because:
It is correct that, during the period when the DOV was being negotiated, the parties were also seeking to determine the provisions of a Settlement Agreement which would formally and unambiguously conclude the entirety of their dispute, including a dispute about claims to the costs of administering the estate and dealing with Mrs Hinds’ Lasting Power of Attorney before her death.
It is also correct that that Settlement Agreement was never produced in a form which was satisfactory to all of the parties. In its various drafts, it provided that, within 14 days of issue of a grant of probate, D would pay Cs the £30,000 legacies described in the DOV, and it also provided that the DOV ‘shall’ be executed by Cs and D.
However, the DOV was an independent suite of contractual rights and obligations. It was not dependent, expressly or impliedly, on the conclusion of the Settlement Agreement. It is a complete and discrete agreement, embodied in a deed.
On 27 October 2020, the day after emailing to say that the DOV had been signed, Tollers wrote to Middletons as follows: ‘As to other matters, as explained to you yesterday, there is still the matter of the draft settlement agreement…. [We] wrote to you on 12th August regarding this. Could you please deal with these residual points with a view to finalising this document without delay.’ A period of delay then ensued, concerned with a dispute arising about inspection of the contents of Mrs Hinds’ property.
When they sent the signed DOV on 23 May 2022, Tollers wrote:
‘As appears to be accepted by the parties, there was a concluded agreement reached in correspondence passing between the respective solicitors in August/October 2019. An offer in this case made on behalf of [D] on the 19 August 2019…
At 13:02 on the 4 October 2019 you wrote to ourselves indicating that your client “are content to accept your client’s offer of each of the three beneficiaries receiving a monetary sum of £30,000 from the estate but otherwise your client to receive the residue of the estate.
Thereafter there was considerable correspondence in which both parties repeatedly confirmed they believed they had reached a concluded settlement. A DOV was prepared and executed by the parties. A draft settlement agreement was prepared but has not been agreed or signed. There was however an agreement regarding your bill of costs of £42,627.68 (including VAT) reached on the 12 February 2020. In those circumstances, it remains the case that in August/October 2019 an agreement was reached although never finalised into a Settlement Agreement…’
It is evident that D’s agents, Tollers, treated the obligations imposed by the DOV as separate from or additional to (even if potentially and if so subsequently to be qualified by) the terms of the Settlement Agreement. It is Tollers’ own case in correspondence that the parties’ obligations were not contingent on the completion of the Settlement Agreement. I agree. There is no legal basis for contending that performance of the DOV is conditional on the conclusion of the Settlement Agreement. The DOV was executed as a deed, and delivered at the very latest on 23 May 2022.
Ds’ position on the validity of the DOV has no real prospect of success at trial. This is sufficient to dispose of D’s defence to liability under the Legacy Claim.
However, matters are not as simple as that.
Mr Pankhurst argues that, properly construed according to normal contractual principles, clause (3) of the DOV bears the meaning that: ‘The Defendant must pay the said sums to the Claimants on the completion of the administration provided there are sufficient sums.’ Although he puts this as a matter of the implication of terms, it is in my judgment better understood as a question of interpretation of the express words used by the parties.
On this latter basis, I agree with him because:
Although the DOV could not strictly vary the 1st Will, the parties drafted it on the basis that it would take effect as a quasi-variation of the will. That is to say, it did not create a pure debt, but one to which the parties treated the law and practice of the administration of estates as being applicable. They reached an agreement on the basis that the DOV would take effect as part of the 1st Will.
In turn, that means that they contracted on the basis there must be sufficient funds in the estate to pay the quasi-legacies.
Furthermore, it follows that the parties’ contract was one which would be treated between themselves as subject to the order of administration imposed by the Administration of Estates Act 1925 Sch.1 Part II.
That is to say, where the estate is solvent, the doctrine of abatement would apply and payment of funeral, testamentary and administration expenses, debts and liabilities would be paid in order out of the following (dealing only with relevant factors):
Property undisposed by will;
The residual estate;
Pecuniary legacies, including therefore each of the deemed £30,000 gifts; and
Specific legacies, which is to say the house.
In turn, the payment of pecuniary legacies was not to be made out of the realised value of the house. Pecuniary legacies abate before specific legacies.
Dealing with my conclusions thus far, judgment must be entered against D on the basis that, according and subject to the terms of the DOV, D is liable to Cs. There is no real prospect of defending the Legacy Claim on the basis explained to me by D.
Where I am troubled, however, is whether Cs have established that there are sufficient funds in the estate to pay their pecuniary legacies in their entirety. That in turn depends on my conclusions about the Costs Claim, and on whether I have enough information about the value of the estate to come to a sufficiently clear conclusion for the purposes of this application. I will turn to the Costs Claim now because it impinges on this question.
The Costs Claim
As I have already indicated, D’s solicitors stated unambiguously on 23 May 2022 that: ‘There was however an agreement regarding your bill of costs of £42,627.68 (including VAT) reached on the 12 February 2020.’
Cs rely on that statement, and more relevantly on the underlying correspondence from which it derives. In essence, that consists of two documents. The first is a letter from Middletons on 29 January 2020. To understand the letter, it is important to understand that Middletons had (i) acted as executors of the 2nd Will until challenge, and (ii) during Mrs Hinds’ lifetime had acted on her behalf in administering her Lasting Power of Attorney and other work. The letter of 29 January 2020 was an attempt to resolve a dispute that had arisen about the quantification of their costs. By way of an offer, they wrote:
‘Clearly, the claim for costs is the main issue and we do not think it is helped by you conflating the claim for costs of dealing with the Estate and the claim for costs for services rendered to the deceased before her death – which is a debt of the Estate. They are all legal costs but they are quite separate issues.
We will deal with both of them and then we will deal with the other issue relating to the expenses due from the Estate to the beneficiaries – and in deed to this firm in respect of disbursements this firm has carried.
Dealing first of all with the costs claims, we attach a copy of the summary page of the Bill of Costs we sent to you [I pause to note that I have read the whole Bill closely].
Part A relates to the work done prior to the death of the deceased and you will see there are profit costs of £7,758.60 plus disbursements and VAT. This is work carried out by this firm for a client for which it is entitled to be paid on the indemnity basis. We can see no real basis for any reduction to that claim but for the sake of argument would be prepared to reduce the profit costs figure by approximately 10% down to a clear £7,000 plus VAT of £1,400 plus disbursements of £265.65 which is a total of £8,665.65.
Parts B, C and D are the legal costs in connection with the administration of the Estate and the issues etc.
The profit costs for those parts B, C and D total £30,846.80. Again, those costs would be assessed on the indemnity basis… [We] would be prepared to apply a reduction of 15% to that profit cost figure which would reduce it from £30,846.80 to say £26,200 plus VAT of £5,240 and disbursements of £2,522.03 which makes a total of £33,962.03.
If you therefore add the sum above (Part A) which we have reduced to £8,665.65 the grand total for costs is £42,627.68…
The proposal is that the costs be settled at the total figure of £42,627.68 on condition that that figure is agreed within the next 14 days and that the sum is paid within 4 months from the date of that Agreement (a total of 4.5 months) after which date interest will accrue.’
There then followed a discussion about the Expenses Claims.
On 12 February 2020, Tollers responded by email: ‘Our client accepts your offer of £42,627.68 (including VAT) inclusive of all costs, including part A of your Bill. Perhaps the deed of variation and settlement agreement can now be finalised.’
Cs say that that exchange of correspondence gave rise to a concluded agreement in respect of the Costs Claim. There was, they say, a clear offer and a clear acceptance. Consideration passed, in that Middletons were prepared to accept less than they argued was due.
D argues again that he did not sign the Settlement Agreement, because (as he saw it) Middletons kept trying to change its terms. In his words, if they tried to change the contract it means they did not accept it in the first place. Those words, however, disclose the flaw with his argument. He says that the various subsequent drafts of the Settlement Agreement did not reflect the agreement that had been concluded on 12/2/20. Which is to say, he is of the view that a concluded agreement was reached. With that, I am in complete agreement for the reasons advanced by Cs. The exchange of solicitorial correspondence imposed an obligation on the estate of Mrs Hinds to pay costs in the sum of £42,627.68. The precise date on which that obligation arose is not specified, and indeed was to form the basis of negotiation in the Settlement Agreement, but is not fundamental to the agreement. Construing the agreement made, it is my conclusion that the sums fall due in accordance with the usual rules governing the administration of estates, dependent therefore on the grant of probate to D and to his gathering of the estate. D’s defence to the claim has no real prospect of success.
As I indicated to Counsel in his submissions, however, I am not persuaded that the contract so made was made with Cs. I say this for a number of reasons:
Firstly, the Costs Claim as identified in Middletons’ correspondence is concerned with (i) costs incurred by Middletons in carrying out Mrs Hinds’ instructions, and (ii) costs incurred by two partners of Middletons as executors of the 2nd Will. In neither case were the costs in question solicitor/own client costs as between Middletons and Cs.
Secondly, the language of Middletons’ letter points towards them differentiating Cs’ claims as beneficiaries and their own claims to costs. See for instance: with respect to the Settlement Agreement): ‘Under the settlement your client is entitled to administer the Estate and the Executor/this firm are entitled to claim their costs against the Estate’ and ‘we can clearly agree … all the other terms necessary for this firm and the Executors and the three beneficiaries to be extricated from having anything further to do with this Estate’; and in relation to the small disbursements claim: ‘we will deal with the other issue relation to the expenses due to the Estate … to this firm in respect of disbursements’; and after making the costs offer: ‘Separate to these [costs] are the payments by the beneficiaries in respect of which we have asked them to provide us with details’.
Thirdly, Middletons’ letter of 29 January 2020 was explicitly written against the background of negotiations being conducted with drafts of the Settlement Agreement being sent by the parties. The draft Settlement Agreement available at the time included as parties not only Cs and D, but also Middletons (as ‘Party B’, acting through the two named partners). It was ‘Party B’ that would, if the Settlement Agreement had been implemented, have been paid the costs. I do not suggest that I should interpret the agreement made in correspondence as if it bore the meaning of an unsigned, unexecuted, draft agreement. Nevertheless, extrinsic evidence is admissible to assist the resolution of an issue about the parties to a contract: Fung Ping Shan v Tong Shan [1918] AC 403 at 406-407.
Mr Pankhurst argued that, on reading the correspondence as a whole, I should construe the agreement as having been made by Middletons on Cs’ behalf, as their solicitor and so as their agent. I am afraid that that position is not borne out by the correspondence itself. It is clear that Middletons were negotiating the costs claim as principals and/or on behalf of the executors, and not on behalf of Cs.
With respect to the Costs Claim, it was therefore in my judgment Middletons (acting on its own behalf and on behalf of the executors) who put forward an offer and whose offer was accepted. D did not take this point, in his Defence or in oral submissions. However, given the contingent nature of the Legacy Claim, it would in my clear judgment be wrong to award Cs the debt claimed in the Costs Claim as if it were their entitlement.
At the same time, it is clear to me that D would have no realistic defence to a claim by the correct party (whether that be Middletons or the executors (or their successors in title)) for the sums claimed in the Costs Claim.
My conclusion as to how to deal with the Costs Claim is wrapped up with my conclusion about the Legacy Claim, because the amount of the Costs Claim is a debt chargeable to the estate and/or an expense payable by the estate in any event, and so reduces the amount available from which to pay the quasi-pecuniary legacies to Cs.
The Resolution
The Legacy Claim can only succeed to the extent that there are funds available in the estate. Mr Pankhurst urges me to find that there are, because:
The accounts rendered by D at the grant of probate in May 2024 showed a net value of the estate of £563,258.00; and
Draft estate accounts produced by D show availability of substantial liquid assets.
What this overlooks is that a substantial part of the asset value consists of the house. The quasi-pecuniary legacies will not be satisfied from the value of the property. The debts are also understated in all of the accounts, because they do not include the Costs Claim, which will take precedence over any pecuniary legacy.
In any event, D responds by reference to a document, not referred to in the Defence, which purports to be an invoice bearing the date 29 June 2018 raised by The Royce Clinic Limited (a company part-owned by D and incorporated on 27 June 2003 according to Companies House) in the astronomical sum of £242,640.00. By the invoice, the company seeks to assert that between 2007 and 2017, home visits were carried out for Mrs Hinds and for which the company is entitled to payment. I observe the following:
No explanation is offered at all for the invoice only appearing in the very recent past, after this application was listed to be heard.
No explanation is offered for the date on the invoice, which differs from what D told me in court, namely that it was raised in the last few weeks.
The evidence in support of the invoice, which itself is not supported by a statement of truth, is as follows: ‘[D] was … cognisant that the deceased did not want to enter a care facility and so did not charge for care up-front in order to preserve funds for in-home care should it be required. This was on understanding that [D] would be the sole beneficiary of the estate and would ultimately be compensated in lieu… [D] has the right to reclaim costs incurred by his business, as [Cs] are also doing’. Given that in neither of the wills was D the ‘sole beneficiary’, this explanation leaves a great deal to be desired.
Even if the debt were properly claimed, the debts all date back to many more than 6 years ago. The claim may be out of time under the Limitation Act 1980.
Nevertheless, at this stage I cannot dismiss entirely out of hand and without further consideration that a debt may be owed by the estate. I have not received enough evidence about this, because it was not clear until the opening of the application that Cs’ case was dependent on the availability of funds. The validity of the debt needs to be more fully explored.
Turning to the draft estate accounts, which I was told were produced in support of the grant of probate:
Assets (realised and unrealised) come to a total of £577,313.05.
Of these, the house is valued at £290,000.00.
That leaves liquid assets (available for the pecuniary legacies and the residue) of £287,313.05.
Administration expenses come to a total of £97,324.10. That is a balance of £189,988.95.
Debts in the accounts are a further £15,267.53, giving a running balance of £174,721.42.
The debt, which I find is proved although not to Cs, in the Costs Claim is £42,627.68, giving a running balance of £132,093.74.
It is therefore clear that, if the debt to D’s company is proved, it would need to satisfied out of the property as well as the pecuniary legacies and residue. The pecuniary legacies would abate to zero. I say nothing at this stage about any potential conflict of interest that D may have as executor and as beneficial owner of a purported creditor.
I have thought carefully about how the case should be progressed. I am conscious as well that the Expenses Claims will, if proved, be likely to affect the estate value as administration expenses or debts, and so reduce further the amount outstanding. I am also conscious that I am presented with unverified draft accounts from well more than a year ago. It seems to me that the claim in this case has perhaps been over-stated as a debt claim; it is in fact a claim to payment if, after a proper analysis of the estate accounts, there are sufficient funds in full or in part. Further, I am not persuaded that the administration of this estate has been finalised, not least because I have seen no final accounts.
In light of that, I conclude as follows:
D’s application of 18 March 2025 will be dismissed.
Judgment will be entered against D in the Legacy Claim, for an amount to be determined after the taking of an account. There is no compelling reason why D should be permitted to proceed to trial on a denial of liability when he has no real prospect of successfully doing so. For clarity, the claim is to a debt under the contract made by the DOV, but the amount of the debt that is payable can be determined only after an account is taken or agreed and it is for that purpose that the account will be taken: this is not strictly the estate account although in practice it will be indistinguishable from that. Therefore, the account is an interim measure under CPR r.25.1(1)(p), but I direct that the procedure under CPR PD40A will apply. Therefore, unless the account can be agreed, there will be an account taken to determine what sums, if any, are due to Cs from the estate.
Using the power I have to make a decision of my own initiative (and in this case after very careful scrutiny of all of the evidence on which Cs rely to make out the Costs Claim), I will give judgment for D against Cs in the Costs Claim under CPR r.3.3 and Part 24. I have before me all the evidence necessary to determine the point about whether Cs are the correct claimants: there is no real prospect of them establishing that they are. It would be a waste of resources for the matter to proceed to trial. It is clear from the citation I have given from Easyair Ltd that Lewison J took the view that, if I concluded that the applicant’s case was bad in law, it should be nipped in the bud at summary judgment stage even if there was no cross-application.
However, it is plain that a debt is owed by the estate in the sum claimed in the Costs Claim, and the proper creditors are Middletons and/or the executors of the 2nd Will. The amount of the Costs Claim is a debt or expense due from the estate which must be accounted for and paid.
The balance of the claim as issued (i.e. the Expenses Claims) will be allocated to the small claims track and tried immediately before the interim account is taken.
District Judge Ross Fentem
1 December 2025