Tardy English executor jailed for contempt

Executors are responsible for administering the deceased’s estate in line with the terms of the will. They have a fiduciary relationship with the estate and are legally bound to act in the beneficiaries’ interests

Additionally, the Trustee Act 2000 provides that executors exercise such care and skill as is reasonable in the circumstances.

Generally, the executor has a year to ensure that assets and liabilities are properly identified and that all taxes, debts, and administration costs are settled before any distribution takes place. If any are overlooked, then the executor is personally liable: s25 of the Administration of Estates Act 1925.

Additionally, beneficiaries are entitled to interest on any outstanding legacies if the executor takes longer than a year to administer the estate.

Background

In Totton & Anor v Totton [2022] EWHC 2304 (Ch) and Totton & Anor v Totton [2022] EWHC 2345 (Ch) Hollie Totton and Daniel Washer (the “Claimants“) are the grandchildren of Hazel Totton (the “Deceased“). Mark Totton (the “Defendant “) is the Claimant’s uncle and the sole executor and trustee of the estate.

The Deceased died on 25 July 2019 leaving three pecuniary legacies of £10,000 each with the balance of the estate being split between the Executor and the Claimants.

The executor received a grant of probate in November 2019; selling the property comprising the bulk of the estate for £425,000 in April 2020.

The Claimants wished to terminate the trust and receive their share of the estate.

On several occasions, the claimants made attempts to contact the executor requesting information regarding the assets of the estate and their distribution. The executor didn’t responded to any of the claimant’s requests.

The court order

On 10 March 2022, following an application from the claimants the Court made an order under Part 64.2 of the Civil Procedure Rules that the defendant provide a full inventory warning that

‘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.’

The Court also granted a freezing injunction in favour of the claimants.

The defendant did not comply with the order and on 31 August 2022, the Court held that the defendant had breached, and remained in breach of the Order.

Contempt

The reason the court gave the executor a four-month custodial sentence for the

“serious, contumacious flouting of orders of the court

include:

• The claimants had not received their share of the estate for over three years and over two years after the principal asset was sold.

• There was no evidence that the defendant had acted under pressure from third parties to commit the breaches of the Order.

• The defendant did nothing to remedy the position; the breaches were serious.

• The defendant deliberately failed to comply with his duties as an executor.

• The defendant was solely responsible for the breach of the Order. (he had not, for example, engaged solicitors to deal with the administration).

• The defendant made no effort to cooperate or mitigate his position.

The court applied the principles set out in Solicitors Regulation Authority v Soophia Khan & ors [2022] EWHC 45 (Ch) where a solicitor was sentenced to six months imprisonment for failing to comply with two court orders to provide court documents to her regulator following intervention into her law practice.

At his sentencing, the defendant admitted that he had breached the order and had

“buried his head in the sand and received a number of envelopes which he just left unopened’

concerning the proceedings. The court reduced the sentence by one month to reflect the defendant’s admission and apology to the Court and ordered he pay the claimant’s costs.