Two cases have hit the headlines recently whereby the executor (the person appointed by the deceased in a Will to administer their estate) has taken money in breach of their duties for their own personal gain.
The two cases can be summarised as follows:
- David Loveday – David was the executor for Mrs Border’s estate worth around £222,000. Mrs Border died aged 71 and she appointed David to take the role as her executor. David should have sold the assets, notably a house in Plumstead, and then transferred the proceeds to Mrs Border’s friends, Emma Cullen and Parminder Gibbs. David failed to do this and instead spent the money on himself. At the time of the criminal trial, only £1,300 was left in the estate’s bank account. David admitted his wrong-doing at court and received a custodial sentence;
- Rachel Swettenham – Rachel was employed as an executive at Gorvins solicitors in Stockport. She had worked at the firm for 35 years. As part of her role, Rachel acted as the executor for a number of clients. During this time Rachel transferred over £316,000 from her clients’ estates to her own personal bank account and used military-style software to delete client files and cover her tracks. Rachel then spent the money on cars, a boat and deposits for two houses. Rachel was sentenced to four years for her wrong-doing. Fortunately, Gorvins solicitors refunded all the money stolen so the clients and beneficiaries would receive their inheritance.
Comment
These two cases highlight the potential abuse that can be committed by executors. Under s.25 Administration of Estates Act 1975 executors are supposed to locate and sell the deceased’s assets and then administer the estate according to law. Unfortunately, it is this power which is open to abuse as executors have the ability to use this law for an improper purpose and can transfer assets to themselves or third parties. In practice, once an asset has disappeared, it is then hard to trace the asset and a beneficiary can be left disappointed. As such, careful consideration needs to be given to the person you appoint as an executor as the role they perform is important. To safeguard against this risk, the law gives certain rights to interested parties to challenge an executor and ultimately remove them from their role. The following action can be taken:
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- Inventory and account application – executors owe a duty to provide beneficiaries with information about the administration. If you believe that an executor is failing in their role, then this option should be considered first as the information provided can be evidence of their wrong-doing and would help remove them from their position. If an executor will not voluntarily provide this information, then an application can be made to the district registrar for an order that the executor exhibits on oath a full and complete inventory and account of the estate. This will provide information on the estate assets and any transfers made. The order can be endorsed with a penal notice which means the executor may be sent to prison if the order is disobeyed. In addition to the order, the district registrar can order than the executor pays for the costs of the application personally. This fact often means that executors provide the information promptly;
- Removal of the executor – If there is evidence that an executor has failed in their duties then the court can order their removal under section 50 of the Administration of Justice Act 1985. A breach of executor duties commonly relate to:
- A failure to provide evidence that the estate is being dealt with properly. In Heyman v Dobson [2007] EWHC 3503 (Ch), [2010] WTLR 1151 the sole executor of a small estate was replaced when the beneficiaries were reluctant to accept his account of dealings with the estate.
- A failure to progress the estate administration. As a general rule, if the administration has not progressed after six months from the grant of probate, then this is evidence that can lead to the executor being removed (unless there is good reason for the executor not distributing the estate to the beneficiaries);
- There is loss being caused to an estate asset and the executor has not taken steps to remedy the situation. This arises when, for example, the executor has failed to sell an asset, such as shares, and the value has reduced significantly;
- The executor has committed fraud. This ground is demonstrated in the cases of David Loveday and Rachel Swettenham detailed above.
- The executor has used the estate assets for personal gain. In the case of Alkin v Raymond two executors sanctioned the payment of an invoice to a company owned by one of them but it was clear that the invoice was not a properly calculated bill for money due to that company, and it followed that they could not be depended upon to administer the estate in the interests of the beneficiaries rather than their own.
If the court orders the removal of the executor, then another person or firm will be appointed in their place. This will then allow the estate administration to progress and avoid any further loss to the estate.
- Personal liability – if the estate has suffered loss due to the executor’s breach of duty, then a claim can be made against the executor directly. This is because executors have an onerous task and if they get it wrong, they are personally liable to the beneficiaries. As such, it is common for an application to be made to remove an executor for breach of duty in addition to a claim that the executor must compensate the beneficiaries personally. Before making this claim, it would be important to check that the executor is wealthy enough to meet any claim and the costs of the court proceedings.
At Rothley Law, We see a lot of executor disputes and we have experience in bringing them to a successful conclusion. If you wish to discuss your dispute further, please contact our team.