The role of an executor is crucial and those in this position should take their responsibilities very seriously. The recent case of Totton & Anor v Totton (2022) EWC 2345 (Ch) is a key example of this.
The deceased died in July 2019 and left behind them a Will dated 30th of January 2017. Â The Will appointed her son as executor and the estate was to go to her son and two grandchildren equally (one-third each).
On the 27th of November 2019, the defendant received the Grant of Probate and on the 7th of April, he sold the deceased’s house for £425,000.
The defendant’s niece and nephew (the grandchildren of the deceased) asked how the estate was progressing and questioned when they may get their inheritance.
The defendant ignored their questions and as a result, the claimants applied to the Court (under Part 64.2 of the Civil Procedure Rules) to force the defendant to give them information about the estate and pay them what was due.
They also requested that the executor be removed and the first claimant to be made the new trustee or for a distribution that meant the trust could be ended. In addition, they also requested an order to be made to stop the defendant from administrating or dissolving the estate.
Consequently, the defendant was then ordered by the Judge to give a complete inventory of the deceased’s estate on the 10th of March 2022. The Judge also made a freezing injunction in the following Order:
- Unless paragraph 8 applies, the respondent must, within one week of service of this order and to the best of his ability, inform the applicant’s solicitors of all the assets from the estate of the late Hazel Margaret Totton, giving the value, location and details of all such assets.
- If the provision of any of this information is likely to incriminate the respondent, he may be entitled to refuse to provide it, but it is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the respondent liable to be imprisoned, fined or to have his assets seized.
- Within three weeks after being served with this order, the respondent must swear and serve on the applicants’ solicitors, an affidavit setting out the above information at paragraph 7 in addition to a full inventory of the estate of Hazel Margaret Totton, an up to date account of the administration of the estate and an account in full of the respondent’s dealings with the estate.”
The defendant ignored the orders made in points 7 and 9 and as a result on the 5th of July, the claimants started committal proceedings.
On the 31st of August 2022, the defendant was found to be in contempt of court for ignoring the orders made in points 7 and 9. The defendant then admitted that he had disregarded and neglected the proceedings.
As a result of this admission, the Judge then sentenced him to four months in custody due to:
- The defendant causing the claimants distress – because of the defendant’s actions and they did not get their portion of the estate for years after the main asset was sold.
- There was nothing to indicate that the defendant’s actions had been a result of pressure from any third parties.
- The defendant committed serious breaches of the Order and did not try to fix the situation.
- The defendant blatantly disregarded and ignored the legal process and did not carry out his duties as an executor properly.
- The defendant had not instructed solicitors to help him carry out his duties as the sole executor of the estate and was found once again to be in breach of the Order.
- The defendant was uncooperative and did not try to alleviate his position.
The Judge offered the defendant “one last chance to comply with the order” because the defendant could not administer the estate if the defendant was in custody. As a result, the Judge suspended the sentence until the 10th of October 2022 and lessened the sentence to three months because the defendant had admitted his fault and apologised at the hearing.
Even though the role of executor can be straightforward, there can be many a pitfall if it is not taken seriously. If you are unclear about your position as an executor you should always obtain legal advice. Specialist probate lawyers can help to advise you of your options and guide you in the right direction.
If you are a beneficiary who is concerned about how an estate is being administered please do get in touch.
If you would like to seek legal advice, email Edward.powell@attwells.com
