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Ask F E Smith Your Own Question
F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9356
Experience:  I have been practising for 30 years.
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Can a trustee/executor benefit under a secret trust

Customer Question

can a trustee/executor benefit under a secret trust
Submitted: 8 months ago.
Category: Law
Expert:  F E Smith replied 8 months ago.

Is it just the town is spelt incorrectly or is it completely wrong and do you want the contract to be void and do you want it to be void or do you want it to be valid?

Customer: replied 8 months ago.
What sort of answer is this to my question about secret trusts !!!!
Expert:  F E Smith replied 8 months ago.

I apologise for the incorrect posting. It happens from time to time because we have to write our questions off-site and then cut and paste them and sometimes, the cut does not pick up the latest post.

I see you have requested a telephone call and I’m happy to call you before I do, I would like some more information please. I need the background to the secret trust and whether any beneficiary who is an executor as either done something wrong or not done something which they should have done.

I need to know your concerns.

There is nothing to stop a trustee/executor being a beneficiary in most cases.

Customer: replied 8 months ago.
When I was a solicitor I drafted the will of the deceased which he executed basically dividing his 2 million estate between his children. I was appointed executor/trustee along with is sister in law. In the 18 months until his death he had consistently told me, as we were close friends, that he wanted me to ensure I was paid for my time. I retired and no longer have a practising certificate before his death. He knew this and still repeated his request that I be paid. As the estate was comprised mainly of investment property, which was my expertise and not his children he wanted them to have my guidance which I have given not only to them but the Estate lawyers who are now saying I can only be paid at the behest of the five beneficiary out of their own purses at the end of the distribution as I am no longer insured and cannot seek payment under the "charging clause". Having delivered an interim invoice for work done as an executor/trustee to January 2016 they say they cannopt paid me form Estate funds. What Next is my question? Geoff Leather
Expert:  F E Smith replied 8 months ago.

The solicitors are quite correct you cannot be paid under the terms of the charging clause if it’s the usual charging clause “any of my executors acting in a professional capacity” because you are no longer acting in a professional capacity.

In my opinion, this is not a secret trusts but is more likely to be promissory estoppel. He expressed the wish that you were to be remunerated but didn’t do anything about it it seems within the terms of his will.

The difficulty for you is that the potential value of your claim in promissory estoppel is probably going to be far less than the cost of bringing your claim and it could be risky if for any reason your claim failed.

Although any claim you bring may be under £10,000 (I don’t know how much time you have spent on this) and hence may be Small Claims Court, a claim for Promissory Estoppel would be part 8 proceedings and you would be at cost risk regardless of the amount involved.

I don’t know whether you are still involved with the administering of the estate could simply refuse to deal any longer and then the estate lawyers (I don’t know how they have become involved) would need to make an application to court to remove you. Of course, they get paid for that so they would probably be rubbing their hands.

You cannot force the 5 beneficiaries to pay you but they may be reluctant to litigate with you if there is a risk that they are going to have to pay money in the event that your claim is successful.

To my mind, ultimately, you were made a promise (that you would be paid) and you relied on that promise to your detriment (acted as executor) and hence, the estate is estopped from denying the promise and not honouring it.

Can I clarify anything for you?