Turnbull v Fleming

The case of Turnbull v Fleming involved the plaintiff beneficiaries, Turnbull, who sought an accounting from the defendant executor, Fleming, as well as equitable compensation for alleged breaches of duty. Fleming was the solicitor of the deceased, and had drafted the will that appointed him as executor. The dispute arose from the beneficiaries' claims that Fleming had acted in wilful default and sought to hold him accountable under these principles. Additionally, the beneficiaries argued that a clause in the will, which excluded the executor from liability for loss, was void due to presumed undue influence and public policy considerations.

The primary legal issues before the court were whether the clause excluding the executor from liability for loss was enforceable and whether the clause was void due to undue influence or public policy considerations. The court had to determine if the clause could exclude liability for breaches of the executor's core duties of honesty and good faith, and whether the clause could effectively exclude liability for losses arising from wilful defaults. The court also had to address whether the presumption of undue influence applied in the context of a clause in a will drafted by the executor themselves.

The court held that the presumption of undue influence did not apply in the context of a will clause drafted by the executor. The court found that the clause in the will was not repugnant to public policy and did not exclude liability for breaches of the executor's irreducible core obligations. The court held that the clause was properly construed to include liability for losses arising from wilful defaults. Accordingly, the plaintiff beneficiaries' claims for an accounting on a wilful default basis and for equitable compensation were dismissed. The court concluded that the exclusion clause was valid and enforceable, and that the executor was not liable for the losses claimed by the beneficiaries.