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The judgement by Mr Arkush is far from the truth. Not one missing asset found in 35 years !






The link for the judgement is here and copied below.https://www.judgments.im/content/J3172.htm


After 35 years Mr Smalley did not find one asset of Mr Durrant's and could not name the date of the trust he had been investigating for all these decades but Jordan can.


Jordan asked 14 questions in court and the lawyers refused to answer all questions apart form which was, what was the Jersey structure and the lawyers missed out stolen trusts and companies and got that question very wrong !


Jordan makes another statement that Mr Smalley was heavily involved with BAE Systems in the Isle of Man, Jordan now holds all the paperwork.


Jordan can soon explain all the arms dealing which has been allowed by the Islands for decades.



CHP 21/0088 and CHP 22/0073 IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN CHANCERY DIVISION CHANCERY PROCEDURE B E T W E E N: CHRISTOPHER JOHN FRANCIS DURANTE Claimant - and - EDWARD JONATHAN SMALLEY Defendant - and - ALEXANDRA FOX CAROL BENSON FRANKIE GETHING JAMES DURRANT KATHY HANNEY NICK DURRANT PAUL DURRANT Interested Parties JORDAN MARK RUPERT JULIAN DURANTE ASHLEY TRISTAN JAMES RICHARD DURANTE ANNA DURANTE Additional interested parties AND BETWEEN: EDWARD JONATHAN SMALLEY as executor of Margaret Edith Ruby Durrant Claimant - and - 2 (1) CHRISTOPHER JOHN FRANCIS ALEXANDER LAWRENCE DURANTE (2) ANNA DURANTE (3) ASHLEY TRISTAN JAMES RICHARD DURANTE (4) JORDAN MARK RUPERT JULIAN DURANTE (5) JAMES ALEXANDER GRAYDON DURRANT (6) CALLIE ELIZA JOY DURRANT (a minor) by her Litigation friend KATE DURRANT (7) FRANCESCA ELISABETH GETHING (Nee Durrant) (8) HUDSON MICHAEL GRAYDON GETHING by his Litigation Friend TIMOTHY GETHING (9) HALLE ARABELLE JOY GETHING (a minor) by her Litigation Friend TIMOTHY GETHING (10) HEATH TIMOTHY GRAYDON GETHING (a minor) by his Litigation Friend TIMOTHY GETHING (11) NICHOLAS MICHAEL GRAYDON DURRANT (12) ALEXANDRA MARGARET FOX (13) LYLA RAY FOX (a minor) by her Litigation Friend STEVEN FOX (14) PAUL ANDREW DURRANT (15) AMY LOUISE DURRANT (16) MATTHEW PAUL DURRANT (17) CAROL ANN BENSON (Nee DURRANT) (18) HANNAH LOUISE BENSON (19) KATHY GRACE HANNEY (Nee DURRANT) (20) PENELOPE ANNE KEMP as Representative of any unborn or unascertained beneficiaries of the trusts of the above-mentioned Will and Trusts and/or the issue of James William Durrant deceased (21) KEZIA GRACE PENELOPE DURRANT (a minor) by her Litigation Friend KATE DURRANT Defendants HIS HONOUR DEEMSTER ARKUSH J U D G M E N T 3 Introduction


1. This is my judgment on two claims arising in relation to the estate of the late Margaret Edith Ruby Durrant who died on 6 April 1991 at the age of 80. Her husband James William Durrant predeceased her on 27 October 1988 at the age of 74. Mr Durrant died as the result of foul play by a person or persons unknown. Mrs Durrant was the sole beneficiary of his estate. Mr Smalley who is a party in both claims is the Manx personal representative of Mr and Mrs Durrant’s estates.

2. In this judgment I shall refer to members of the Durrant and Durante family other than Mr and Mrs Durrant by their first names. No disrespect is intended.

3. Mr and Mrs Durrant had three sons, Peter, born in 1940, Michael, born in 1941 and Christopher, born in 19451 . Peter and Michael have both died. Christopher is the claimant in claim number CHP 21/0088, in which he seeks as against Mr Smalley (a) accounts and (b) Mr Smalley’s removal as personal representative of Mrs Durrant’s estate. Christopher has instructed at least two firms of Isle of Man lawyers to act for him in the past but is unrepresented at the hearing of these claims. He is assisted by his son Jordan who spoke on his behalf. The interested parties in Christopher’s claim are the children of Peter and Michael and the additional interested parties are Christopher’s wife Anna and their sons Ashley and Jordan.


4. In the second claim, number CHP 22/0073 Mr Smalley seeks directions from the Court under Rule 13.35(1)(a)(ii) and/or Section 61 of the Trustee Act 1961 and/or the inherent jurisdiction of the court as to the distribution of Mrs Durrant’s estate. The first to fourth defendants are Christopher, Anna, Ashley and Jordan. The other defendants are the existing descendants of Peter and Michael and the representatives of unborn and unascertained beneficiaries in all three branches of the family. 1 Christopher and his family’s surname is Durante. In paragraph 15(8) of Mr Smalley’s 1st witness statement dated 22 September 2022 he states that Christopher informed him that he changed his name by deed poll from Durrant to Durante on his marriage to Anna.

5. The hearing of the claims took place on 8 and 9 November 2023 in person, and on 13 November 2023 by remote hearing. Jordan addressed the court in submissions on behalf of Christopher, and Mr Smalley was represented by Mr Andrew Bridson of BridsonHalsall. Both lodged written skeleton arguments in advance, pursuant to directions I gave in an Order dated 4 July 2023 following a directions hearing. Following the conclusion of the hearing I also received a closing address by email from Christopher, who said that technical difficulties prevented him from addressing the court by way of reply to Mr Bridson’s submissions on the last day of the hearing.

6. The interested parties comprising the children of Peter and Michael, and their descendants, are represented by CallinWild. In a letter to the court dated 29 June 2023 they stated that they opposed Christopher’s claim and supported the claim of Mr Smalley and did not feel that they could afford legal representation at the trial. Accordingly, I did not hear any submissions on behalf of the Durrant interested parties.

7. In the course of this judgment I shall refer to the Bundle supplied to the court with page numbers in square brackets. Mrs Durrant’s Will

8. Mrs Durrant’s Will is dated 13 July 1990 [page 527]. The Will names Mr Smalley and his then partner at Jaques and Lewis solicitors, George Stuart, as her executors and trustees. Mr Stuart died in 2007 and Mr Smalley is sole surviving executor. The grant of probate to Mr Smalley and Mr Stuart issued by this court is dated 25 April 1991 [page 526]. By her will Mrs Durrant left her residuary estate to her trustees on discretionary trust for the beneficiaries, who were her three sons, their wives and their issue living at her death or born within 80 years. On the same day as she executed her Will, Mrs Durrant signed a letter of wishes at [page 810]. Paragraph 1 is in the following terms: “My primary aim is that my Estate, my husband’s Estate (James William Durrant) and any trusts set up by my husband should be aggregated and, after giving credit for any gifts made by my husband and myself in our joint lifetimes, divided equally between my three children. There is a great deal of tension in existence between my three children and it is my fervent desire that by treating them equally they will not be jealous of one another.” 5 Evidence

9. The witness statements and exhibits generated by the claims are voluminous, running in all to 6,541 pages in 21 ring binders. My trial preparation included reading all the statements, but not (in the main) the exhibits. In the event I was taken to a very small proportion of documents at the hearing. 10. The evidence lodged on behalf of the Durante family comprised no less than 21 witness statements. In general I did not find them to be very helpful. They are often difficult to follow and have a tendency to make tendentious statements and unsupported claims. On a number of issues they merely state that they put Mr Smalley to proof. It is difficult to discern from them any clear account of events in a chronological timeline or any clear refutation of Mr Smalley’s description of his attempts to identify and collect in assets in Mrs Durrant’s estate, supported by evidence. They referred extensively to events going back to the 1970s and 1980s when Mr and Mrs Durrant were alive. These were often not germane to the issues falling for decision in the claims, which go to Mr Smalley’s administration of Mrs Durrant’s estate since her death in 1991. 11. I observe that in Christopher’s statement headed “Further Response to the Claimant’s Section 61 Claim and his First Witness Statement Plus those dated 11th September 2022 and 16th December 2022 Respectively” [page 181], Christopher accepts that Mr Durrant committed forgery on at least one occasion, had a “technically careless attitude towards some taxes” [paragraph 17 on page 187] and “evaded some taxes” [paragraph 73 at page 201]. At paragraph 111 [page 207] Christopher accepts that he disposed of a quantity of Mr Durrant’s paperwork and files by dumping them at the local tip. These are relevant matters in the context of Mr Smalley’s evidence that Mr Durrant conducted his affairs in a consistently dishonest manner to evade tax, forged signatures and that he was faced with formidable difficulties in seeking to unravel his financial affairs and as a result of missing or incomplete records. 12. Jordan has made six witness statements. He gives his occupation as ‘Debt Collector’. His statements are characterised by a trenchant style and are replete with allegations of a serious nature against Mr Smalley. His third statement dated 30 October 2022 contains the following in paragraph 1 [page 395]: “I wish to demonstrate to the court that this case links to the world’s biggest criminal syndicate and bank theft identity case known to date, called the 6 Carrol Foundation Trust.” Paragraph 2 accuses Mr Smalley and Jersey Trust Services Providers of “profiteering, racketeering, corrupt practices and blatant theft of my family’s inheritance”. In the same paragraph Jordan states that his intention is to expose persons who he believes were behind the “financially motivated murder” of his grandfather, Mr Durrant. Even on their face I do not consider that Jordan’s colourful allegations withstand serious examination and, as I indicated to him in the course of submissions, it is not the function of this case to determine who caused the death of Mr Durrant or the reasons why he died violently. 13. Mr Smalley has made five witness statements, of which the most significant is his first statement dated 11 September 2022 containing a detailed account of his administration of Mrs Durrant’s estate. His further statements mainly deal with his responses to Christopher’s evidence. 14. Also before the court is the first statement of Roger Harper dated 9 September 2022. Mr Harper is a Chartered Accountant in the Isle of Man who was instructed by Mr Smalley to prepare accounts for Mrs Durrant’s estate from the date of her death to 30 June 2022. The statement exhibits those accounts. Submissions 15. Jordan’s oral submissions occupied the time of the court over two full days. His submissions largely consisted of referring me to numerous documents in the Bundle. Many of the documents pre-dated the deaths of Mr and Mrs Durrant. It was not always clear what he wished to extract from the documents and even when the point of showing them to me was clearer, it rarely helped me in relation to the matters I have to decide. He did not take me to any of the lengthy written evidence filed in support of the Durante family’s case, although I repeatedly encouraged him to do so. His submissions were diffuse, lacking in any logical and chronological sequence of argument and consequently I found many of them to be incoherent. Although Jordan was given to making tendentious allegations against Mr Smalley in particular, I record that he did not address me on or repeat the more colourful and extravagant allegations of criminality that featured in his witness statements, as they did also at the directions hearing on 4 July 2023. 16. At intervals during Jordan’s submissions, I tried to assist him by marshalling them under headings encapsulating the key points that he wished to raise. Jordan encouraged me to do 7 so and acknowledged that this approach would be helpful. I was therefore able to identify his principal submissions, which can be summarised as follows: 17. Mr Smalley should be removed as he is guilty of: 17.1 Delay in the administration of Mrs Durrant’s estate, amounting to maladministration. 17.2 Bias, in preferring Peter and Michael and their families to Christopher and the Durante family. 17.3 Not following the wishes or instructions of Mrs Durrant. 17.4 Enriching himself at the expense of Mrs Durrant’s estate. 17.5 Failing to follow the law by his pattern of hostile behaviour towards Christopher’s branch of the family2 . 17.6 Failing to trace and recover assets in the estate. Jordan referred on occasions to Mr Smalley being at fault for his failure to find “missing millions”. 18. I also had a written skeleton argument signed by Jordan, Christopher and Anna, comprising in a single page of A4 10 short paragraphs setting out what “will be shown in court”. 19. The oral submissions of Mr Bridson on behalf of Mr Smalley were supported by a detailed written skeleton argument and a brief supplemental skeleton argument dated 26 October 2023. In brief summary they covered the following matters: 19.1 Mr Durrant’s records were confused and incomplete. He backdated and forged documents and left his financial affairs in considerable disorder. 19.2 Mr Smalley has had to resolve the accounting gaps as best as he can and this has taken some time. 19.3 He has reached a resolution which will result in the assets being distributed between the three branches of the family equally, taking account of gifts received during the lifetimes of Mr and Mrs Durrant. 19.4 Mr Harper’s accounts should be accepted. There has been no credible criticism of them and no professional report has been produced which would cast doubt on them. 2 The Durante family’s witness statements, and Jordan’s submissions, generally referred to the Durrant and Durante ‘bloodlines’. I suggested that they might better be called ‘branches of the family’, which Jordan was willing to adopt, and this judgment will use that term. 8 19.5 On a proper analysis, all known assets in Mrs Durrant’s estate have been accounted for. There are no missing monies and there is no likelihood of further investigation locating any other assets. 19.6 Mr Smalley’s professional fees are reflected in the accounts prepared by Mr Harper, either directly, or in the case of Manor Estates Limited, indirectly by reference to its net asset value. Mr Smalley has charged no fees for his own time since his retirement from practice in 2007. Mr Bridson indicated that following the conclusion of the hearing he would provide the court with a schedule of fees charged by Mr Smalley’s firm. In the event I did not receive this until after circulating a draft of this judgment. The schedule lists the fees paid to Mr Smalley’s firm net of VAT and disbursements for each of the years from 1995 to 2019. The sums total £1,292,326.16. The highest amount was £166,612.51 in the year to 30 June 1996 and the lowest was £9,671.30 in the year to 30 June 2019. 19.7 The delay in concluding the administration is attributable to a combination of (1) the actions of Mr Durrant which appeared to be devised to obscure the ownership of assets, (2) the lack of documentary records, (3) difficulties in assessing the tax liability of the estate and consequent negotiations with the Inland Revenue, (4) significant difficulties in securing agreement with the trustee of assets in Jersey, (5) opposition from family members at various times to giving indemnities to trustees in Jersey which held up a resolution of recovering assets there until a different solution was found which the court is asked to approve. 19.8 The records of distributions to the three branches of the family dispose of the argument that Mr Smalley was biased against Christopher’s branch, as Christopher has in fact received larger sums than Peter and Michael and their families. 19.9 Mr Smalley received advice from leading counsel at various stages in the administration which he followed. 19.10 Any difficulty in contacting Christopher in 2016-2017 was for a limited period when there was uncertainty as to his and his family’s whereabouts and should not be counted against Mr Smalley. 19.11 Mr Smalley’s removal would not be in the interests of the beneficiaries. 19.12 Mr Smalley’s approach in distributing assets by means of distributions from the funds held by him and by the trustee in Jersey achieves equalisation between the three branches of the family, accords with the written wishes of Mrs Durrant, is fair overall and should be approved by the court 9 20. Jordan replied, in which he referred to some authorities by name, but did not take me to any of them. The Applicable Law 21. The following matters of law contained in Mr Bridson’s skeleton argument were not disputed on behalf of Christopher. It is fair to say that as litigants who were not legally represented, Christopher and Jordan who assisted him would not be expected to have a knowledge of the applicable law. Allegations of misconduct 22. In Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Lord Hope stated that fraud or dishonesty must be “distinctly alleged and as distinctly proved”. Allegations of this nature must be sufficiently particularised. “This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the Defendant was dishonest and not merely negligent …”. The same approach is applied in this jurisdiction: see the judgment of Deemster Corlett in Unidev D.O.O. and Clark v Fresson and Barclays (26 July 2016) ORD 2016/0003. 23. Christopher obtained permission to amend his claim form to enable him to make allegations of fraud and dishonesty against Mr Smalley at the directions hearing on 29 July 2022. In the event Christopher did not amend his claim. Jordan blamed this on advocatesformerly acting, but that is a matter between them. At the directions hearing on 4 July 2023 I made it clear that Christopher not having amended his claim, it was not open to him to pursue those allegations in these proceedings and that it was too late to amend. 24. This judgment will therefore address the allegations of misconduct in the administration of Mrs Durrant’s estate made by Christopher against Mr Smalley, but not with any claims of fraud or dishonesty as they have not been pleaded in the claim form. Accounts 10 25. Section 35 of the Administration of Estates Act 1990 (which corresponds to section 25 of the Administration of Estates Act 1925 in England) provides that a personal representative shall be under a duty “when required to do so by the court (a) to exhibit on oath in the court a full inventory of the estate and (b) to render an account of the administration of the estate to the court.” 26. This does not mean that a beneficiary is automatically entitled to an order for an account as of right. Chief Master Marsh summarised the position in England in relation to the analogous case of an order for an account against a trustee in the following terms in Ball v Ball [2020] EWHC 102 (Ch): “21. There are three points that arise: (1) What does a beneficiary have to establish as the basis for the court making an order for an account in common form to be taken ? (2) To what extent does the court have a discretion to refuse to make an order for an account? (3) What is involved in providing an account ? “22. The beneficiary must show that an account has not been produced or that the account is inadequate. What will comprise an adequate account will depend on the circumstances ….. An account in common form is, in essence, the provision of information by the trustee to the beneficiaries … “23. There is a discretion whether or not to order an account. In Henchley v Thompson [2017] EWHC 225, [2018] WTLR 1289 at [25] I observed: “There is no absolute entitlement to obtain an order for an account. It is one thing for the duty to account being part of the irreducible minimum obligations of trustees, but quite another to say that the court must always, without exception, make an order for an account to be provided. The duty and an entitlement to an order from the court are quite different. I can accept, however, that the court will, in the exercise of its discretion, ordinarily make an order for an account where an account has not been provided and furthermore, there may be very limited circumstances in which the court will decline to make such an order. Nevertheless it is plain to my mind there is a discretion even if it is one which will be applied sparingly. …. 11 “24. I accept Mr Lewison’s helpful summary of what is required from the trustees in providing an account to the beneficiaries: (i) They must say what the assets were; (ii) They must say what they have done with the assets; (iii) They must say what the assets now are; (iv) They must say what distributions have taken place.” 27. There is no relevant distinction between trusts and estates in relation to accounts. Thus, for example, Deputy Master Francis applied the passage from Henchley v Thompson quoted above in the context of administration of estates in the recent decision of Alizade v Kudlick [2023] EWHC 1082 (Ch). Removal of a Personal Representative 28. Under section 8 of the 1990 Act, which is in virtually identical terms to section 50 of the English Administration of Justice Act 1950, the court has jurisdiction to replace or remove a personal representative. The section does not say how the court should exercise its discretion, but in Aitchison v Corkhill CHP 2013/149, 30 July 2014, the High Bailiff noted obiter dicta of Deemster Cain in Re Papadimitriou, dealing with the removal of a protector of a trust, and went on to say: “In considering the broad issue as to the replacement of a fiduciary Deemster Cain referred to the words of Lord Blackburn in the Privy Council case of Letterstedt v Broers [1884] in terms of the approach of the court under its jurisdiction to remove a trustee. Correctly in my view, the advocates before me have both referred to this Privy Council case as being the leading judgment as to the considerations needed to be made prior to the removal of a personal representative by the court. In addition to Letterstedt v Broers I have noted the principles arising from other cases quoted either directly or indirectly …. Such cases are from England and Wales and are decided under the equivalent statutory provision existing there being section 50 of the Administration of Justice Act 1985 (an Act of Parliament). The wording of section 8 of the 1990 Act is in virtually identical terms to section 50 and so the 12 case-law is of assistance here. I do not intend to recite greatly from the cases drawn to my attention. It seems that the principles can be summarised as follows: a. Cases of positive misconduct of the existing trustee point to the trustee’s removal. b. Not every mistake or neglect of duty or inaccuracy of conduct of a trustee will require removal. c. Acts or omissions which endanger trust property or show a want of honesty, reasonable fidelity or proper capacity to execute the duties of trustee are usually needed before the trustee is removed. d. The court should ask whether the continuation of the trustee would prevent the trusts being properly executed. e. The court’s main guide must be the welfare of the beneficiaries. If the continuation of the trustee would be detrimental to the execution of the trusts then the trustee should be removed. f. Hostility alone between the beneficiaries and the trustee may not be sufficient to warrant removal but where the hostility is grounded on the mode in which the trust has been administered removal is indicated. Hostility will be a factor to weigh in the balance in terms of whether it is obstructing the administration of the estate or is capable of such obstruction. The court should ask whether the hostility causes difficulty in the administration of the estate. Has the administration come to a standstill because of such difficulties ? g. No more strict test regarding removal applies to an executor or administrator than to a trustee although the less complicated the personal representative’s functions under the trust the less weight there is in favour of that person’s removal. h. Where the personal representative has been deliberately chosen by the settlor such is a relevant factor weighing against removal. i. The court must adopt a pragmatic approach considering the views of the beneficiaries and the interests of the estate as a whole. The additional costs involved in appointing a new trustee will be a relevant consideration bearing in mind the size of the estate. Discussion Christopher’s claim for accounts and the removal of Mr Smalley 29. Christopher’s claim by Amended Claim Form dated 9 September 2022 [page 16] is limited to seeking accounts, including an inventory of the estate, and the removal of Mr Smalley for 13 delay. Strictly speaking, the claims for removal on other grounds such as bias, have not been pleaded. I will nonetheless address them in this judgmentso they are not left unadjudicated. This is undoubtedly what Christopher wishes. Allegations of fraud and dishonesty are in a different category and are not open to be raised, for the reasons given earlier in this judgment. 30. Delay Mrs Durrant died in April 1991 and Mr Smalley issued his claim form seeking the directions of the court to distribute her estate on 15 September 2022. A period of 31 years to administer an estate must of itself call into question whether in the circumstances the length of the administration is so inordinate as to justify the removal of the personal representative. I readily accept that on any basis 31 years is a very lengthy time to administer an estate. 31. I shall therefore consider the sequence of events over the 31 year period by reference to the correspondence and evidence to which I was taken by Jordan in support of his case on delay and Mr Smalley’s case in response 32. Jordan referred to correspondence which indicated that Christopher was concerned about the delay in administering the estate as long ago as 1995 and perhaps earlier. His then solicitors Lewis & Dick wrote to Mr Smalley on 15 February 1995 complaining that there was a delay in obtaining an order from the court in the Isle of Man approving a settlement of liabilities with the Inland Revenue which was “not only quite extraordinary but on the face of it is totally unreasonable” [page 4593]. However, 6 days later, on 21 February 1995, the Jersey solicitors for the trust based in that jurisdiction which was claimed as an estate asset wrote to Lewis & Dick indicating that part of the blame lay with Peter and Michael who, by inference, were not cooperating with Christopher’s attempts to progress administration because of bad blood between the brothers [page 6012]. On 16 February 1995 Lewis & Dick prepared a Memorandum about the Jersey trust, known as the Emerald Trust, which stated in part that “Christopher is now in a nasty situation where we cannot get any cooperation from Michael and Peter Durrant” [page 4010]. This theme was repeated in Lewis & Dick’s letter to Christopher dated 13 June 1995 [at 4611] which appears to cast blame on both Mr Smalley and Peter and Michael. Indeed, on 16 June 1995 Lewis & Dick wrote to Peter and Michael’s solicitors, Manches, asking for confirmation whether Peter and Michael had consented to the 14 agreement with the Inland Revenue [at 4612]. In the event the order of this court approving the settlement with the Inland Revenue was made on 18 October 1995 [page 802]. 33. Negotiations with the trustees to collect in and distribute the trust assets in Jersey dragged on and Jordan took me to Lewis & Dick’s attendance note of a round table meeting in London on 27 September 1999 at [4646] which included the following: “I said that I was totally unwilling to advise my client to give an indemnity unless we had some sort of agreed timetable with Smalley. I made it absolutely clear that I am sick and tired of the delay on the part of Smalley and regard his behaviour as utterly and totally unreasonable. I stated as baldly as that, and commented that in England he would probably be struck off or at least severely disciplined by the Law Society if a complaint was lodged about his excessive delay.” The concluding paragraph of the attendance note is in these terms: “The whole meeting turned into a series of complaints about the delay on the part of Smalley. While I expressed myself in the strongest possible terms, both Matheson and Peter Angel [representing Jersey trustees and Peter and Michael respectively] made it clear that they agree with most of my comments.” 34. Jordan did not refer me to any further correspondence about delay until an attendance note of Alison Riley, a member of Mr Smalley’s firm, dated 12 June 2012, recording a telephone call in from Anna asking for a progress report [page 2718]. On the face of the attendance note no complaints were being received about delay. Ms Riley told Anna that the documents needed for an application to the Isle of Man court were being drafted and hopefully matters would be resolved by the latter part of the year. I was not taken by Jordan to any correspondence regarding delay in the 13 year period since the meeting in London in 1999. 35. On 8 April 2013, some 9 months later, Ms Riley prepared another attendance note of a telephone call in from Anna [page 2719]. Again, this does not contain any references to complaint about delay. Instead, the purpose of the call was to notify Mr Smalley that she and Christopher were penniless, indicating that they had made a poor investment of their capital with a friend. Anna is recorded as stating that she and Christopher might have to move out of 15 the country to Thailand where their son Ashley was living. The inference is that Anna asked Ms Riley if money could be distributed to her and Christopher out of the estate, to which Ms Riley replied: “… the trust did not really have any assets as there was only had (sic) a power of investment to give commercial loans rather than any more distributions as the income being received was insufficient and that most of the funds were tied up in gilts.” On the same day Christopher wrote to Mr Smalley about their financial embarrassment, stating that by late May they would have no home to reside in and that he hoped Mr Smalley could make a financial distribution “this year” or soon after [2720]. The letter does not make any reference to or complaint about delay. In a letter to Christopher dated 25 April 2013 [page 2722] Ms Riley stated that Mr Smalley had seen his letter, was sorry to hear of the financial difficulties but that it was not possible to make a loan as requested. 36. On 9 August 2013 Christopher emailed Ms Riley giving a correspondence address for him in Thailand but stating that he retained his email address [page 2724]. On 9 October 2013 Christopher emailed Ms Riley from Thailand asking to be kept informed about progress and asking why it was taking so long [page 2723]. Ms Riley replied on 14 October 2013 referring to difficulty dealing with the (Emerald Trust) people in Jersey and the wish to avoid litigating there which would be a waste of time and money [page 2727]. On 28 December 2013 Christopher wrote with a more pointed reference to delay being to the detriment of the beneficiaries [page 2726]. On 8 January 2014 Ms Riley replied referring to the parties in Jersey having changes in personnel and finding it difficult to respond to Mr Smalley promptly. Correspondence along these lines continued in March 2014 [page 2730]. 37. In January 2016 Ms Riley emailed Christopher noting that it was some time since she had heard from him and asking for some details about the family as an application to the Isle of Man court was being finalised. There ensued an unfortunate hiatus until June 2017 when the correspondence indicates that Mr Smalley’s firm was seeking to trace Christopher’s whereabouts and even employed search agents to locate them, unsuccessfully as it turned out. Mr Smalley appears to have overlooked that his firm retained Christopher and Anna’s email address and could have tried writing to them by that means. This hiatus ended with a telephone call to Ms Riley from Anna on 6 June 2017 asking for an update on how matters were progressing. This is recorded in an attendance note [page 2769]. The attendance note refers to Christopher preventing her from getting in touch with Mr Smalley for some time as he was very disillusioned with the time taken to resolve matters. 16 38. Jordan submitted that “Mr Smalley deliberately failed to contact him because he was happy to leave Christopher’s branch of the family in poverty, because he harboured hatred towards them because they did not go along with a scheme that would have amounted to tax evasion”. This is not supported by any evidence and I do not feel able to draw such a far-reaching inference without more, and there is none. Rather it seems to me that the 18 month gap in correspondence was the result of some carelessness within Mr Smalley’s firm to look for and try using Christopher’s email address, rather than any deliberate desire not to contact him. 39. By the end of 2017 matters leading up to Mr Smalley’s application to the court were moving towards a conclusion. Mr Smalley met James and Paul on 28 November 2017, recorded in the attendance note at 2770. The meeting appears to have lasted 4 hours and the attendance note does not reflect any complaints made of delay. At that stage it was anticipated that there would be a Deed of Retirement and Appointment (DORA) in relation to the Jersey trust. In the event this met with opposition from Christopher, as it included indemnities that he was and is unwilling to give. Mr Smalley has found an alternative method of distributing the assets of the Jersey trust that does not require Christopher’s signature. Mr Smalley’s application seeks the approval of the court to this approach. 40. I turn to consider Mr Smalley’s case in reply to the allegations of delay. 41. Mr Smalley’s 1st witness statement dated 11 September 2022 contains a detailed account of his administration. It runs to 255 paragraphs and 60 pages. It is divided into sections under headings and sets events out in chronological order. In my view it gives the court considerable assistance in following the lengthy relevant history of the Durrant family and the often confusing and almost certainly dishonest manner in which Mr Durrant set up a web of trusts and companies and conducted his financial affairs. Similarly, it charts Mr Smalley’s protracted efforts to deal with the administration of Mrs Durrant’s estate. To an extent, the statement discloses that there have been periods of time when no events occurred or, at any rate, no events are referred to. 42. Paragraphs 222 to 245 deal with Mr Smalley’s negotiations with the trustee of the Emerald Trust in Jersey. This has been a major cause of difficulty in the efforts to administer the estate. The negotiations can be viewed as taking place in various stages. Mr Smalley states that 17 discussions about a Deed of Release and Indemnity began in about 1999. The correspondence referred to earlier in this judgment suggests that the discussions began earlier. The first stage in the negotiations was from 1999 (possibly earlier) to 2007. In 2006 Christopher executed a Deed of Release and Indemnity. However, Peter and Michael did not. I can detect no cause for criticism against Mr Smalley for Peter and Michael’s refusal or failure to sign such a deed. 43. In paragraph 225 Mr Smalley states that “Between 2001 and 2021 various meetings and discussions were held with the Jersey trustee and the form and content of the DORA was negotiated.” This is a bland and less than helpful statement of events (or the lack of them) over a 20 year period. However, the Emerald Trust appeared to be the holder of two subsidiary companies, Lobos Limited and Grace Investments Limited. The Jersey trustee consistently claimed (and appears still to do so) that the Emerald Trust was a valid trust, despite Mr Smalley having compelling evidence supported by Leading Counsel’s advice that it was a sham, and that Emerald Trust was the owner of the shares in the subsidiaries. Grace Investments Limited was subsequently dissolved. Faced with the possible need to institute proceedings in Jersey to determine the validity of the Emerald Trust and the beneficial ownership of the shares in Lobos Limited, Mr Smalley sought to reach agreement with the Jersey trustee under which all the trust assets were treated as falling into Mrs Durrant’s estate and transferred to him as executor. In the event it took a very protracted length of time to reach agreement with the Jersey trustee. Agreement was finally reached only in or about 2022 pursuant to which the Jersey trustee will distribute the assets of the Emerald Trust to the three branches of the family directly. 44. Mr Smalley’s account contains no reference to any negotiations or events of relevance from 2007 to 2013. One inference that can be drawn is that he was guilty of delay during that period. 45. The next chapter of negotiations with the Jersey trustee began in about 2013 and concluded by 2022 or earlier when agreement was reached in principle on the terms of the DORA. However, Christopher refused to sign any releases or indemnities in favour of the Jersey trustee. Peter and Michael’s branches of the family were willing to do so. I do not see that Christopher can complain of any delay in the finalisation of the DORA if he was responsible for it. The final stage in negotiations came after the issue of Mr Smalley’s application when a new approach based on the distribution of the trust assets (in the region of £3 million) to the three 18 branches of the family was agreed, which does not involve the consent of Christopher. It will require the approval of the court and I shall deal with this further in the discussion of Mr Smalley’s application. 46. Drawing these threads together, I have reached the following conclusions: 46.1 Mr Smalley has demonstrated that he has had to address an immensely formidable task in unravelling Mr Durrant’s complex financial affairs so as to determine what assets form part of Mrs Durrant’s estate, she being his sole beneficiary. 46.2 Given the difficulties and complexities, it is not surprising that the administration would require a period of some years to complete. 46.3 Progress was hampered to a considerable extent by the bad blood between Christopher and his brothers, which resulted in their refusal to cooperate with each other at various stages. 46.4 Negotiations with the Jersey trustee have been difficult and protracted and Mr Smalley was faced with the choice between instituting potentially hazardous litigation in Jersey involving the risk of liability for significant costs and instead pursuing accommodation with the Jersey trustee. 46.5 From 2013 the prospects of reaching agreement with the Jersey trustee improved. However, Christopher’s refusal to sign a release and indemnity in favour of the trustee meant that the DORA approach was unable to proceed in the manner intended. 46.6 A period when I can reasonably conclude that there was inaction on Mr Smalley’s part in the administration of the estate was from 2007 to 2013. I note that Mr Smalley retired in 2007. He remained as executor and matters were handled by his firm, including by Ms Riley. It may be that Mr Smalley’s retirement resulted in a lack of active administration until he came back into the fray in or about 2017 in order to conclude matters. 46.7 A second, relatively short period of inaction (at any rate in relation to Mr Smalley’s contacts with Christopher) was from January 2016 to June 2017 when Mr Smalley’s firm was seeking to trace Christopher’s whereabouts but had apparently overlooked their knowledge that they had his email address. However, as the attendance note of 6 June 2017 [page 2769] records, there was also a decision on Christopher’s part not to have contact with Mr Smalley’s firm during this period. 46.8 From the latter part of 2017 the negotiations with the Jersey trustee were making progress. They took until 2022 for agreement to be reached on the substantive matters. However during this period Christopher’s refusal to agree to a release and indemnity was a cause of delay. I 19 have not seen any evidence to suggest that Mr Smalley ought to have ensured that the negotiations took less time than they did, or that this was within his power. 46.9 Mr Smalley took independent legal and accountancy advice to give him guidance at various stages. He instructed no less than three Queens Counsel on various issues relating to tax, the validity of the Emerald Trust in Jersey and other trusts set up by Mr Durrant and the form of estate accounts. He also commissioned a detailed accountants’ report from Ernst & Young, to which reference will be made below. It has not been suggested on behalf of Christopher that Mr Smalley was wrong to obtain independent advice, or that any aspect of the advice he received was wrong. 46.10 The wealth of detail set out in Mr Smalley’s first witness statement, which it has not been necessary to recite or describe in detail in this judgment, amounts to a compelling case for the conclusion that he has addressed with determination and effectiveness the task of unravelling Mr Durrant’s financial affairs. Christopher’s evidence contains numerous points of criticism, but I consider that neither these nor Jordan’s submissions on his behalf have shaken either the coherence of Mr Smalley’s narrative or my overall conclusion that Mr Smalley has effectively surmounted the task with which he was faced. 47. Given the strength of feeling now voiced by Christopher and his branch of the family about Mr Smalley’s conduct of the administration, it is a striking feature of the long history of the matter that he brought no claim to remove Mr Smalley at a much earlier stage. The correspondence from 1995 to 1999 suggests that a claim might have been considered and might at that time have stood some prospects of success. Christopher was legally represented by experienced London solicitors and one inference is that they advised him against making such a claim. Be that as it may, no claim was brought at that time or until as late as 2022. Indeed the following chronology indicates that the claim was only made after Christopher was aware that Mr Smalley had a reached a late stage in completing negotiations with the Jersey trustee and the conclusion of the administration was in sight. 16 April 2020 Email from Mr Bridson’s firm to Christopher’s solicitors then acting, enclosing accounts and requesting a meeting [page 2557] 16 April 2020 Christopher’s solicitors decline to meet and demand further information [page 2578] 20 21 April 2020 Mr Bridson’s firm providing additional information regarding the accounts and indicating that an application to the court to finalise the administration would be prepared [page 2582] 18 September 2020 Following various chasers, Christopher’s solicitors acknowledge that an application to the court would be made and stating Christopher’s view that “the net Estate should be divided equally down the three branches of the family taking into account agreed distributions in advance” [page 2591]. This is indeed Mr Smalley’s approach in his application. There is a reference to Mr Smalley’s ‘dilatory’ approach being a cause for concern, but there is no suggestion that he should be removed. 18 December 2020 Christopher terminates instructions to his solicitor and instructs Isle of Man advocate Laurence Vaughan Williams (LVW) [page 4907] 12 January 2021 Mr Bridson’s firm writes to LVW stating that an intimated claim for his removal would be inappropriate given that an application to the court to finalise the administration was shortly to be made [page 5623] 48. Christopher’s claim therefore gives the impression of being a riposte to Mr Smalley’s intended application rather than a serious attempt to remove him. 49. Furthermore, this places into sharp relief the fact that Christopher’s claim to remove Mr Smalley is made at the very time that Mr Smalley is seeking the court’s approval to complete the administration. There is a tension between Christopher’s stated desire to see an end to Mr Smalley’s involvement and his opposition to Mr Smalley’s application which will achieve precisely that. Jordan told me that Christopher wanted a new trustee to find what he termed “the missing millions”, or act on Jordan’s own researches to find such moneys which are continuing. I shall state my observations as to this below. 50. Finally under this head of delay, I turn to the criteria derived from the authorities referred to earlier and I shall direct myself in accordance with them. 51. I consider the following matters to be of relevance: 21 51.1 Christopher has failed to demonstrate that Mr Smalley has been guilty of positive misconduct, want of honesty, reasonable fidelity or capacity. 51.2 Mr Smalley is not seeking to continue as executor in the face of Christopher’s opposition to him. On the contrary, Mr Smalley is seeking not to remain as executor on the basis that the administration has reached its conclusion. 51.3 The welfare of the beneficiaries is the main guide. Mr Smalley has, after many years, finally been able to complete the administration and distribute the assets in Mrs Durrant’s estate between the three branches of her family equally, taking into account earlier distributions, in accordance with her written letter of wishes. This will result in the significant sum of the order of £3,000,000 being distributed between the three branches of the family, including the Emerald Trust moneys to be distributed to the family direct from Jersey. The accountant instructed by Mr Smalley, Mr Harper, considers that all the assets that are realisable have been identified and that further researches will not succeed in locating any further moneys. In these circumstances, the welfare of the beneficiaries must be best served by bringing the administration to a close without further delay and expense and distributing the net assets in the estate to them. 51.4 Mr Smalley was chosen by Mrs Durrant to be her personal representative. He had been her professional adviser for a number of years and she knew him well. This is a factor of relatively little weight given the passing of time and the fact that the court is being invited to give its blessing to the completion of the administration. 51.5 Two of the three branches of Mrs Durrant’s family support Mr Smalley’s application. The opposition comes from Christopher’s branch which make up a minority of beneficiaries. The interest of the estate points to the conclusion of the administration, and not to delay further, in particular when it has not been demonstrated that any more assets will be found. 51.6 The additional costs of appointing a new personal representative would be very substantial given the complexity and lengthy history of the estate. There would be no countervailing advantage in doing so given that it has not been demonstrated that any further assets will be found. To do so would run completely counter to the welfare of the beneficiaries. 51.7 Finally, in the event that any further assets are found, whether from Jordan’s researches or any other cause, they can be administered and distributed as part of Mrs Durrant’s estate, if necessary with the assistance of the court. The order of the court will build in a permission to apply for that among other purposes, so that the court is able to deal with any matters arising subsequently. It is not at all uncommon that after an estate administration has been 22 completed further assets come to light and they are subject to the same administration and distribution as any other property in the estate that has been administered at an earlier time. 52. For these reasons, I conclude that the factors to reject Christopher’s claim under the head of delay are overwhelming. 53. Bias Christopher contends that Mr Smalley has preferred Peter and Michael and their families to Christopher and his branch of the family. The evidence suggests otherwise. Since the death of Mrs Durrant the three branches of her family have received the following amounts, in particular realised by the sale of property in Manor Estates Limited, which it is common ground is an asset forming part of the estate: Christopher £500,993 Peter £521,611 Michael £607, 816 See paragraph 82 of Mr Smalley’s 5th witness statement dated 28 March 2023 at [370]. 54. However, taking into account the gifts made by Mrs Durrant during her lifetime, the amounts received by the three branches of her family are the following: Christopher £886,230 Peter £693,007 Michael £781,712 See paragraph 26 of Mr Smalley’s 2nd witness statement dated 7 October 2022 at [313] and paragraph 78 of his 5th witness statement at [370]. 55. Christopher’s evidence does not contradict these figures but states that he puts Mr Smalley to proof of them. Mr Smalley relies on the documents in his possession and the accounts prepared by Mr Harper. I consider that Mr Smalley has proved them above and beyond a sufficient standard of proof. 23 56. Mr Bridson further noted that in 2015 Mr Smalley declined to grant a loan of estate moneys to Michael’s son James: see page [2835]. 57. Mr Smalley’s application includes approval for the estate to be distributed equally between the three branches of the family having regard to the amounts they have already received. In this way they will benefit equally from the estate. This reflects Mrs Durrant’s Letter of Wishes. Christopher has sought to put in issue the validity of the Letter of Wishes, alleging in paragraph 12 of his witness statement dated 20 February 2023 that it did not represent Mrs Durrant’s true intentions. In particular he claims that his mother’s intentions were not to equalise lifetime gifts. He cites no evidence in support of this contention, other than a letter from Mrs Durrant which he says supports his position. The effect of disregarding lifetime gifts would be to benefit him financially, since the final distribution will take such gifts into account in assessing the sums to be distributed. On an equality-based approach Christopher will receive less money in order to balance up with the other family branches what he has already received. Mr Smalley deals in his evidence with Mrs Durrant’s instructions for the preparation of the Letter of Wishes and with its execution by her: see paragraphs 6-22 of his 2nd witness statement at [310] and paragraphs 50-56 of his 5th witness statement at [367]. Mr Smalley refers to and exhibits his contemporaneous attendance notes. I am completely satisfied that his evidence demonstrates beyond doubt that Mrs Durrant’s Letter of Wishes is both valid and reflects her true intentions. 58. Accordingly, there is no foundation for Christopher’s allegation of bias against Mr Smalley. Moreover, the terms of the order sought in Mr Smalley’s claim will provide for Mrs Durrant’s estate to be shared between the three branches of the family equally, in accordance with her “fervent desire” to treat her children equally expressed in the Letter of Wishes. This is the opposite of bias. 59. Not following the wishes or instructions of Mrs Durrant In his submissions Jordan referred to two letters written by Mrs Durrant or on her behalf to Mr Smalley and a solicitor’s attendance note which referred to the possibility of Christopher being paid for work said to be carried out by him in relation to Manor Trust. These items go back to 1991 or earlier and the letters were written during Mrs Durrant’s lifetime. None of the items 24 relate to the administration of her estate and I was only shown single items that appeared to form part of a sequence of correspondence, and not the whole picture. Even if I was to conclude that Mr Smalley failed to carry out instructions given by Mrs Durrant during her lifetime, and in my view the items I was shown would not make out that claim, I do not consider it would assist me in deciding whether Mr Smalley was guilty of wrongdoing in relation to administering her estate or, at any rate, it would carry little weight. 60. Enriching himself at the expense of Mrs Durrant’s estate Christopher’s evidence does not substantiate this allegation. During the course of submissions I invited Jordan to point to any entry in Mr Harper’s accounts or any other matter to which he wished to refer in support of the allegation. Jordan was either unable or unwilling to do so. The schedule provided by Mr Bridson reflects that over the period from 1 July 1994 to 30 June 2019, the amount of legal and professional fees paid to Mr Smalley’s firm totals £1,291,326.16. This is a not inconsiderable amount. It equates to an average sum of £53,805.25 each year. The schedule indicates that in a few years the fees amounted to approximately twice that amount, and in other years they were much lower. However, given the formidable task of unravelling Mr Durrant’s financial affairs in order to ascertain the size of Mrs Durrant’s estate, as described in considerable detail in Mr Smalley’s written evidence, that sum does not to my mind provide much ammunition for the charge of Mr Smalley enriching himself. I was told by Mr Bridson that Mr Smalley has not charged at all for his own time since his retirement in 2007, although colleagues in the firm did charge for their time. I have not been taken to any indication that Christopher challenged the amount of any fees incurred to Mr Smalley at any time prior to the issue of his claim. The fees have not been the subject of any challenge by the two other branches of the family. 61. I have therefore concluded that the allegation of Mr Smalley enriching himself fails to be made out. 62. Failing to follow the law by a pattern of hostile behaviour towards Christopher’s branch of the family 25 It seems to me that this is another expression of the allegations of bias and not following Mrs Durrant’s wishes. For the reasons set out above, those allegations fall to be rejected. Furthermore, I am unable to see that the allegation receives any support from the written evidence. Even if it did, I would fail to see any useful point in removing Mr Smalley for this reason given that his own application is aimed at drawing the administration to a close, which in effect takes Mr Smalley out of any active further role. Should any future applications to the court name him, such as in the event of estate assets being found (which is unlikely given Mr Harper’s evidence), the court can assess the position in the light of the facts then before it. 63. Failing to trace and recover assets in the estate Jordan’s submissions made reference to the “missing millions” which he asserted Mr Smalley had failed to track down and recover for the estate. He referred to property transactions that had taken place during Mr Durrant’s lifetime which, he said, pointed to missing moneys. Mr Smalley has been very much alive to these matters and his evidence demonstrates that he has done his best to investigate them. The difficulty with which he was faced is that Mr Durrant’s records are incomplete or inadequate, whether deliberately or because they have been lost or disappeared. It is also possible that Christopher himself was responsible, whether deliberately or not, for some missing documents when he disposed of files at a tip, as referred to earlier. As long ago as 2004 Ernst & Young were instructed to carry out an independent report as to Mr Durrant’s finances and accounts. All the unresolved issues occurred during the lifetime of Mr Durrant, who died in 1988. The Ernst & Young report was signed on 14 July 2010 and is at [pages 959-1404], so it is a lengthy and detailed document. The primary purpose is stated to be “collate all of the information relating to the Durrant family, related trusts and related companies in one document” (paragraph 1). On its face the report achieved that aim. 64. The Ernst & Young report stands as an independent and exhaustive review of all relevant company transactions, company accounts and bank transactions and to my mind it speaks for itself. It supports the investigations and accounts prepared by Mr Harper and where their respective accounts differ, Mr Harper has prepared reconciliations. At paragraph 207 of his 1st witness statement at [293] Mr Smalley states : “I do not believe that any more information on the Jersey structure and/or Mr Durrant can be accessed which would clarify where any of the missing money in respect of the various property transactions has gone to.” 26 65. Mr Harper has made a witness statement dated 9 September 2022 at [465]. He sets out the basis on which he has prepared accounts relating to the companies and trusts forming part of or connected with the estate. At paragraph 10 of his statement he refers to a report dated 22 December 2010 that he prepared for Mr Smalley on the findings of the Ernst & Young report, together with Geoffrey Hetherington, Chartered Accountant, a partner in the accountancy practice of Bristow Burrell, who acts on behalf of Peter Durrant and Michael Durrant's executors. He states that he has narrowed down the unresolved issues leading to moneys unaccounted for to £501,052.05. He further states: “I believe that [Mr Durrant] would have been aware of these payments and would probably have made arrangement for any transfer of funds.” I understand from this that in effect Mr Harper is saying that Mr Durrant dealt with the funds in accordance with his own wish so that they may be unaccounted for in his records (possibly deliberately), but are not “missing”. At paragraph 12 of his statement Mr Harper says: “I do not believe that any further searches for information would, now, some 33 years after the death of Mr Durrant reveal any new accounting and banking information.” 66. I see no reason to doubt the analyses carried out by Ernst & Young, or the views of professional accounts Bristow Burrell and Mr Harper. Nothing said to me by Jordan suggested any credible ground to suppose that further investigations would uncover any money belonging to the estate, let alone “missing millions”. However, if I am wrong about that, and Jordan succeeds in finding missing money or property belonging to the estate, it can be administered as part of the estate in accordance with Mrs Durrant’s will and if necessary it can form the basis of an application to the court if the court’s assistance is required. 67. In the course of his submissions Jordan advanced the claim that the assets of the Emerald Trust now amounted to £800,000, when they should have amounted to £3,000,000. However, Mr Bridson demonstrated to my satisfaction that a proper reading of the accounts of Emerald Trust and its subsidiary companies shows that their combined value has in fact increased to £3,345,5663 . 68. It follows that I accept the veracity of the accounts prepared by Mr Harper which cover the administration of the estate from the death of Mrs Durrant to 2022 when Mr Smalley’s application was issued. Christopher has not produced any professional report casting doubt 3 See the consolidated balance sheet of Manor Estates Ltd as at 30.6.2003 giving its value as £2,011,159 [1326], the asset value of Emerald Trust, Lobos Ltd and Grace Investments Ltd as at that date being £1,334,407 including cash in hand, thereby giving a combined value of £3,345,566. 27 on the accounts or putting forward alternative versions. The accounts give the same or more information as those that would be ordered by the court. I can therefore see no useful purpose in making an order for the taking of any additional accounts. 69. For these reasons, I am left wholly unsatisfied that Mr Smalley has failed to trace and recover estate assets. In the event that any such assets are found, they will remain recoverable for the estate and the beneficiaries. 70. Conclusion on Christopher’s claim for accounts and the removal of Mr Smalley Having examined every ground advanced in Christopher’s evidence and submissions of Jordan in support of Christopher’s claim, for the reasons set out above I have reached the firm conclusion that none of them have been made out. In the case of the ground of delay, which in my view was capable of amounting to the strongest claim, and even assuming that Mr Smalley was guilty of periods of inaction, the threshold in law for removing a personal representative has not been reached, and it would not be in the interests of the beneficiary or their welfare for Mr Smalley to be removed and a new trustee appointed. Christopher’s claim is therefore dismissed. The application by Mr Smalley for directions as to the distribution of Mrs Durrant’s estate 71. By his amended Claim Form dated 16 December 2022, Mr Smalley seeks directions the effect of which will be to provide for the distribution to the beneficiaries of the moneys in Mrs Durrant’s estate, including the value represented by the Emerald Trust held by trustees in Jersey, and bring to an end his administration of the estate. The distribution to each of the three branches of the family will be of such amounts in each case as to accord them an equal share of the estate when lifetime distributions are taken into account. As noted earlier in this judgment, this accords with the “fervent desire” of Mrs Durrant who wished to treat her children and their families equally and recorded this intention in her signed Letter of Wishes made contemporaneously with her Will. 72. Having rejected Christopher’s claim to remove Mr Smalley on the basis that his criticisms of Mr Smalley have not been made out, or would not form a proper ground for removal, and having accepted the submissions on behalf of Mr Smalley that he has not been guilty of 28 misconduct in the administration, it follows that Mr Smalley’s application should in principle be accepted. 73. On 13 November 2023 Mr Bridson supplied a revised draft order to the court. The relief sought is the following: Pursuant to Rule 13.35(1)(a)(ii) and/or Section 61 of the Trustee Act 1961 and/or the Court’s inherent jurisdiction the Court is of the opinion, directs and advises AND ORDERS as follows: 1. the Claimant is authorised and directed that he may allow the administration and distribution by the Jersey Trustee of the assets held by the Jersey Trustee purportedly comprised directly or indirectly in the Emerald Trust (including the 9 shares in Lobos Limited (Jersey company no 10554) together with the assets purportedly held by Lobos Limited) in accordance with the Trust Distribution Approach (or such other approach as is agreed with the Claimant and/or the respective branches of the Durrant family to allow the distribution of the Jersey Assets between the three branches of the Durrant family) (the “Jersey Distribution”) without further enquiry as to whether those assets form part of Mrs Durrant’s estate and devolve under her Will or are comprised in the Emerald Trust; 2. the Claimant is authorised and directed to execute all such instruments and documents including releases as are, in the opinion of the Claimant, reasonably required by the Jersey Trustee to allow the progression and completion of the Jersey Distribution; 3. on the entirety of the assets held by the Jersey Trustee being distributed by the Jersey Trustee in accordance with the Jersey Distribution the Claimant is relieved of any obligation to pursue the Jersey Trustee in respect of any assets belonging or which may belong to the Estate; 4. the Claimant is authorised and directed to administer and distribute the assets purportedly comprised directly or indirectly in the Manx Trust the 1,950 shares in Manor Estates Limited (together with the assets purportedly held by Manor Estates Limited) on the footing that it is void and all those assets form part of Mrs Durrant’s estate and devolve under her Will; 5. the Claimant is authorised and directed to distribute or allow the distribution of the assets of Mrs Durrant’s estate and/or the Emerald Trust, as the case may be: 29 a. without making any further inquiries in relation to the affairs of Mr and Mrs Durrant, their assets and liabilities; and b. on the basis of his current understanding of the assets available for distribution, as set out in the witness statements in support of this claim and in the exercise of the dispositive powers and discretions conferred by the Will he is entitled to take into account: c. the wishes expressed by Mrs Durrant, as expressed in a letter of wishes dated 13 July 1990, that her children be treated equally; d. benefits (including advances, distributions, loans and gifts) which Mrs Durrant’s children (or entities owned or controlled by them) may have received during Mrs Durrant’s lifetime directly from Mr James William Durrant (“Mr Durrant”) or directly from Mrs Durrant; e. such advances, distributions, loans or gifts which have been made to each branch of the family since the death of Mr Durrant and Mrs Durrant; and f. any distributions made to Mr and Mrs Durrant’s children or grandchildren by the Jersey Trustee 6. the Claimant is authorised and directed to take such steps to call in and liquidate the assets of Mrs Durrant’s estate and/or the Emerald Trust for the purposes of distribution, (including merging or liquidating companies) as the Claimant sees fit including allowing such steps to be taken by the Jersey Trustee in respect of the assets under their control; 7. the Claimant is authorised and directed to take no further steps to investigate the administration of the Emerald Trust including the remuneration of, and costs and expenses incurred by, the Jersey Trustee Limited and its predecessors and is relieved of any obligation to pursue the Jersey Trustee for any breach of trust; and 8. there be liberty to apply 30 9. costs 74. The families of Peter and Michael support Mr Smalley’s application. In a letter dated 8 September 2022 Penningtons Manches Cooper on their behalf wrote to Mr Bridson’s firm reiterating their opposition to Christopher’s claim and their support for Mr Smalley resolving all outstanding matter with the Jersey trustee and distributing the estate as soon as possible [2114]. In a letter dated 23 February 2023 Isle of Man advocates CallinWild wrote a letter on behalf of the families of Peter and Michael, the 5th to 20th Defendants (the 21st Defendant had not been born at that date), stating that their position remained as stated in the Penningtons letter [3299]. They further stated that they did not intend to file substantive evidence as they did not consider they could add to that of Mr Smalley and they wished to avoid incurring costs in doing so. On 29 June 2023, shortly in advance of the directions hearing, CallinWild wrote to the court as referred to earlier reiterating Peter and Michael’s families’ opposition to Christopher’s claim, stating their unhappiness with the filings of Jordan and the costs thereby generated and also stating their support for Mr Smalley’s application. They referred to their support for an open offer made to Christopher by Mr Smalley which would have resolved the claims, albeit that its provisions would have caused them financial disadvantage and expressing the hope that the need for a trial of the claims could be avoided. They expressed deep concern about the costs to the estate if the matter proceeded to a contested hearing. They said that they felt they could not afford to instruct legal representation for the hearing but CallinWild would be available if necessary. They asked if they could be released from attending the trial, for which I gave permission. In the event Christopher rejected the open offer and the matter has had to proceed to a contested hearing, leading to this judgment. 75. I am satisfied that the terms of the proposed draft order at paragraphs 1-8 (paragraph 9 refers to costs which I shall deal with separately) are within the power of the court, whether under the Rules, section 61 of the Trustee Act 1961 or the inherent jurisdiction and are proper and appropriate. I am prepared to make an order in those terms. I will deal with any consequential matters, including costs, at a later date when this judgment is formally handed down at a hearing to be listed for that purpose

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