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What to do if an Executor can’t be trusted

Reasons to choose Wilson Browne

When someone dies the Executor appointed by their Will is put in the position of ensuring that things are dealt with properly.

This is a position of trust and one in which the Executor might have access to significant sums of money.

Executors are bound by obligations of fiduciary duty.  What is that?  Fiduciary duty is a position of  “the utmost trust and confidence to manage and protect property or money, usually for the benefit of another person”.

A recent case demonstrates what can happen if the person entrusted to act as Executor fails in their duties and will fully or criminally acts against the interests of others.

In the Estate of Anita Border the Executor appointed was “good neighbour” Mr Loveday.  When Anita Border died in 2015 her Estate included bequests leaving £220,000 to be distributed between her partner and a friend.

The Executor dutifully distributed £110,000 to Anita Border’s partner but her friend Parminder Gibbs received nothing and issued Court proceedings to recover the money.

The High Court was told how Mrs Gibbs was lied to by the Executor Mr Loveday and how delaying tactics were employed to put her off.  In the course of an application for the removal of the Executor Mrs Gibbs discovered that the neighbour had in fact helped himself to the money which had been spent on cars, holidays and paying off debts.  There was nothing left.

The Executor was prosecuted and served an initial term of 6 months in prison for refusing to provide details of how the money had been spent.  Subsequently he was sentenced to a further term of 3 years and 7 months for fraud.

On sentencing, Judge Brendan Finucane QC remarked that the neighbour,  Mr Loveday, was guilty of

“… an abuse of a position of trust over a prolonged and sustained period of time”

Sadly it seems unlikely that the money will be recovered.

At Wilson Browne Solicitors our expert Contentious Trusts and Probate Team advise clients when Executors are failing to deal properly with the administration of an Estate.  If problems cannot be resolved then an application can be made to the High Court for the removal of the Executor and for the appointment of someone else to act in their place.

Our Team have also advised in circumstances where one Executor has “run off” with the funds in the Executors’ account and in a case where an Executor had simply failed to take any steps in the administration of the Estate at all because they were not mentioned as a beneficiary of the Will.

The decision as to who will act as your Executor is an important one as you are entrusting your entire Estate to this person and expecting them to carry out your wishes after you are gone.

If you are worried that you have appointed the wrong person as your Executor (or if your Executor is not longer able to act) you should take urgent steps to review your Will or to execute a Codicil.

If you are concerned that an Executor is not doing the job properly contact our Team and we can advise on the steps that can be taken to look at the situation and decide whether or not an application should be made for them to be removed.

Jennifer Laskey

Posted:

Jennifer Laskey

Partner

Jennifer is a Solicitor and Partner with 21 years experience advising clients in relation to litigated Will disputes. A Legal 500 recognised lawyer, Jennifer is a full member of ACTAPs and has resolved multi-million pound disputes for clients in Courts across England.