A reminder of the risks of underestimating the responsibilities of being an executor

The recent judgment in the case of Totton & Anor v Totton [2022] EWHC 2345 (Ch) ought to serve as a stark reminder that executors need to take their duties very seriously.

In this case, the High Court found that an executor had failed to comply with his duties as an executor and, subsequently, breached a court order intended to remedy the position. As a result, the executor was found to be in contempt and sentenced to a custodial sentence of three months.

Background

The claimants (Hollie Totton and Daniel Washer) were the grandchildren of the deceased. The defendant (Mark Totton) was the uncle of the claimants and the sole executor and trustee of the estate.

The deceased died on 25 July 2019 leaving a will dated 30 January 2017. Pursuant to her will, the deceased made three specific legacies and the remainder of the estate was to be divided between the claimants and defendant equally.

The defendant obtained the grant of probate on 27 November 2019 and subsequently sold the deceased’s property for £425,000 on 7 April 2020.

The claimants made multiple attempts to contact the defendant requesting information regarding the assets of the estate and for their distribution. The defendant did not respond.

On 12 April 2021, the claimants made an application pursuant to CPR Part 64.2 for the following remedies:

1. A full inventory of the deceased’s estate;
2. A distribution in order that the trust could be brought to an end or, alternatively;
3. The removal of the executor and for the first claimant to be appointed as the new trustee.

They also requested an injunction to stop the defendant for distributing or dissipating the estate pending resolution.

On 10 March 2022, Meade J agreed that a full inventory and estate needed to be provided by the defendant. He also granted a freezing injunction in favour of the claimants, making the following order (“the Order”):

“7. 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.

8. 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.

9. 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 did not comply with paragraphs 7 and 9 of the order of Meade J, and the claimants brought a committal application on 5 July 2022.

At a hearing on 31 August 2022, Mr Justice Leech held that the defendant was in contempt of court because he had breached, and remained in breach, of paragraphs 7 and 9 of the Order.

At his sentencing hearing on 15 September 2022, the defendant admitted that he had breached the Order and that he had “buried his head in the sand” in respect of the proceedings.

In deciding his sentence, the Judge applied the principles set out in Solicitors Regulation Authority Ltd v Khan [2022] EWHC 45 (Ch) which a court must apply when deciding an appropriate sentence.

The Judge found that a four-month custodial sentence was justified for the defendant’s “serious, contumacious flouting of orders of the court” for the following reasons:

1. The claimants suffered significant prejudice as a consequence of the defendant’s conduct. They had not received their share of the estate for over three years and over two years after the principle asset was sold.
2. There was no evidence that the defendant had acted under pressure from third parties to commit the breaches of the Order.
3. The defendant was aware that he was committing breaches of the Order and has remained in breach of the Order. He did nothing to remedy the position; the breaches were serious.
4. The defendant failed to engage with the legal process at all, even when the committal application was issued. He therefore deliberately failed to comply with his duties as an executor.
5. The defendant was the sole executor of the estate and had not instructed solicitors to assist him. On that basis, he was solely responsible for the breach of the Order.
6. The defendant made no effort to co-operate or mitigate his position (which meant that no discount of sentence could be offered).

However, the Judge did reduce the sentence from four months to three months to reflect the defendant’s admission and apology at the committal hearing.

The Judge did give the defendant “one last chance to comply with the Order”, on the basis that he could not administer the estate to the benefit of the claimants if he was in prison, and so he suspended the execution of the Order until 10 October 2022.

Conclusion

Whilst the above case may make any executor question exactly why they agreed to act in this role, it should be remembered that the custodial sentence was applied due to a breach of a court order, rather than for failing to administer an estate.

Having said that, whilst often the role of executor can be straightforward, executors should always take the time to find out what their role involves and what obligations are placed on them both in dealing with estate assets and dealing with beneficiaries.

If in any doubt, executors should seek legal advice as to the steps they should take to comply with their duties.

From a beneficiary’s perspective, this case is a useful reminder that there are remedies available if executors are failing to provide information regarding an estate, or failing to comply with their duties.

FURTHER INFORMATION

If you have any questions or concerns about the content of this blog, please contact Laura Phillips or any member of the Dispute Resolution team.

ABOUT THE AUTHOR

Laura Phillips is a Senior Associate in the Kingsley Napley's Dispute Resolution team, specialising in Wills, Trusts and Inheritance Disputes. Laura’s experience includes challenging wills on the basis of lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence, and includes dealing with multi-jurisdiction estates with a multi-cultural aspect.