Being an executor - it's dead serious!
Oct 2022
Private Client

Being an executor - it's dead serious!

The case of Totton & Anor v Totton [2022]

A Judge has sentenced an executor to four months imprisonment after he failed to comply with his legal duties and administer an estate in accordance with the Will.

Mr. Totton is the sole executor and trustee of the estate of Hazel Totton, who died in July 2019. He took up his role as the appointed executor and applied for the Grant of Probate which was issued in his name in November 2019. The most valuable asset in the estate was a property which was sold in April 2020. Following the sale however, Mr. Totton failed to progress the administration of the estate for two years.

The beneficiaries of the estate, the granddaughters of Hazel Totton, instructed Solicitors and contacted Mr. Totton many times during this two year period, but Mr. Totton continued to fail to comply with his legal duties. The beneficiaries were forced to take Court action to deal with Mr. Totton’s delay in carrying out his duties as an executor. The Court made an Order in March 2022 ordering Mr. Totton to comply with its terms by 7 May 2022. Mr. Totton did not comply and so matters were brought back before the Court.

A hearing was due to take place on 14th September, but Mr. Totton failed to attend, and so a warrant was issued. The next day, Mr. Justice Leech considered the sentence to be imposed on Mr. Totton for contempt of Court.

Mr. Totton apologised to the Court and admitted that he had breached the Order made earlier this year. Mr. Totton said that he had “buried his head in the sand and received a number of envelopes which he had just left unopened”.

The Judge stated he was satisfied that the beneficiaries of the estate had suffered significant prejudice as a result of Mr. Totton’s failure to deal with the administration of the estate in a timely matter, and there was no evidence that Mr. Totton had acted under pressure from anybody else to commit the breaches of the Order. The Judge therefore drew the inference that Mr. Totton was aware that he was breaching the Order, had remained in breach, and had done nothing to comply.

The Judge was satisfied that the breaches of the Order were serious and noted that Mr. Totton had failed to engage with the legal process at all throughout the proceedings and had every opportunity to comply with the Order but failed to do so.

Despite the Judge considering whether a fine would be a sufficient penalty and taking into account the fact that a custodial sentence should only be imposed as a last resort, the Judge stated that Mr. Totton’s conduct merited an immediate custodial sentence of a significant length. The minimum sentence which the Judge considered he could properly impose was 4 months. This was reduced by 1 month to reflect Mr. Totton’s admission of breach of the Order and apology to the Court. As he had already served 2 days in custody the sentence was reduced further to take that into account.

However, the Judge recognised that Mr. Totton would not be able to engage with the legal process or carry out his remaining duties as executor if he was in prison and so he was prepared to allow Mr. Totten one last chance to comply with the Order. Mr. Totton now has until 10 October 2022 to comply with his duties, falling which, his term of imprisonment will begin.

When you are appointed as an executor in a Will, it can be difficult to decide whether to act. The death of a loved one can leave you feeling overwhelmed and unable to cope with the responsibility of dealing with an estate. It is important to remember that you do not have to act as an executor even if you are appointed, but the decision should be made as soon as possible. Executors cannot begin dealing with the estate and then easily walk away, or simply do nothing, if it becomes too much.

We recognise that dealing with the administration of an estate of a loved one or close friend can be time consuming and stressful. We also appreciate that it is hard to simply walk away when you may feel an obligation to do that one last thing for the person who trusted you enough to appoint you as their executor.

We are also seeing more and more issues created where an executor has tried to administer an estate without professional help, ultimately costing the estate more than if assistance had been sought at the outset.

We are an award winning, top-tier private client team and experts in our field, and we can assist you with each stage of the administration of an estate. Whether you want to hand over the reins to us altogether, or have us simply guide you through the process, we are here to help.

If you would like to have an initial, no obligation, chat to see how we can assist, please contact a member of the Private Client Team on 0191 232 8345.

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