The court has shown its displeasure with trustees under a will who did not discharge their duties properly, by removing them and replacing them with professional trustees.

The case arose because of a dispute over a will, the last of several made by the testator, who was a multimillionaire. He made his final will just four days before he died. The will left his estate, which consisted mainly of shares in family companies (which were put in trust) and his home, to be distributed by his executors. The trustees were a solicitor, the man’s son and two old friends who worked for a family business. The will provided for a very unequal distribution of the estate between the man’s children. The trust was a discretionary trust, giving the trustees the ultimate right to distribute income and capital and a codicil to the will provided that the income from the trust was also to be distributed unequally.

Problems arose when the solicitor, who was appointed to ensure the other trustees carried out their duties correctly, failed to explain their duties to them. Trust accounts were never prepared and the son decided independently to sell the company shares without consideration being given to whether this was in the best interest of the beneficiaries of the trust. The judge found that the trust had not been properly managed and held that the solicitor trustee was principally responsible for this failure. He ordered three of the four trustees to stand down and that professional trustees should be appointed in their place. The judge rejected the argument that because the mistakes were made innocently this did not warrant the original trustees being dismissed.

In addition, the other two children of the deceased argued that an oral agreement had been made between them and their brother, acting as executor, to divide their father’s estate equally. The judge dismissed this claim after examining earlier wills, which had also provided for an unequal split of the estate’s assets.

This case illustrates that keeping a copy of past wills is to be recommended, especially if it is possible that a will may be challenged after death. It also highlights that when making your will, you have the freedom (within limits) to distribute your estate as you see fit.

Furthermore, trusteeship is an onerous obligation. A breach of duty, even one made innocently, can have serious consequences for a trustee and this case underlines the importance of carrying out one’s duties as a trustee efficiently and correctly. If a trustee is unsure as to their rights and responsibilities, they should seek advice rather than carrying on regardless.

Case: Jones and others v Firkin-Flood and another [2008] EWHC 2417 (Ch), [2008] All ER (D)