The case concerned a man who made his will over seven years prior to his divorce. He died little more than a year after the marriage ended. He and his ex-wife were still living together in the former matrimonial home when he died. Due to the divorce, she no longer benefited under his will, which was to be read as if she had died before him.

The position on the ground following his death was that his ex-wife remained living in the property, in which she owned a half share. The other half was held in trust for a widely drawn class of beneficiaries, including two of the man’s sons by a previous marriage. The executors of the man’s will were the ex-wife’s son and brother, who were also trustees of the trust.

The sons launched proceedings seeking the removal from office of the executors, into whose shoes they wished to step. They did so on the basis that the executors had failed to take steps to sell or otherwise realise their father’s half share in the property so that the proceeds could be distributed to the beneficiaries.

They contended that the executors had breached their duties by permitting the ex-wife to live in the property rent free. The executors were also alleged to have consciously or unconsciously permitted the interests of the ex-wife to be given preference over those of the beneficiaries.

Rejecting the sons’ application, however, the High Court noted that the ex-wife was in poor health and unable easily to move from the property. Given that she was not prepared to leave voluntarily, the executors would have to obtain a court order in order to sell the property with vacant possession. Their decision not to take that course was reasonably open to them and was not driven by some motive of benefiting the ex-wife in preference to the trust’s beneficiaries.

The ex-wife in any event had a right to occupy the property by virtue of Section 12 of the Trusts of Land and Appointment of Trustees Act 1996. She had made substantial contributions to the maintenance and insurance of the property and, even if the executors were able to charge her occupational rent, their decision not to do so was reasonable and did not amount to a breach of trust.

The sons said that they had no wish to exclude the ex-wife from the property and suggested that their father’s share could be realised by means of a buyout or equity release. Those, however, were not courses that could be forced on the ex-wife and there was no evidence that they would be economically feasible.