Litigation Letter

Grounds for removal

Jones and others v Firkin-Flood and other [2008] EWHC 2417 (CH); [2008] ALL ER (D) 175 (Oct)

Under the deceased will, he appointed as executors his solicitor, one of his sons and two longstanding friends who were employees of the family business. The assets in the estate were shares in the family company and the family home. The trustees had failed to ascertain the nature and extent of their duties, no trust accounts were ever prepared, the trustees failed to supervise the management of the trust to such an extent that, but when the son decided to sell the trust companies, the trustees did not consider that such a sale would be in the best interests of the beneficiaries. The judge rejected the submission that trustees should not be removed unless there is deliberate fault. Their failure was not one of dishonesty or deliberate breach, but rather primarily of unfitness. They were ignorant of their duties and the solicitor trustee had failed to explain those duties to them. He was principally responsible for the trustees’ collective abdication of duty. Because the three lay trustees did not know where their obligations were, most of their breaches of duty were breaches of omission rather than of commission. The judge directed three of the four trustees to stand down.

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