Committal of lay executor for breaching court orders relating to the administration of an estate

Totton & Anor v Totton [2022] EWHC 2304 (Ch) and Totton & Anor v Totton [2022] EWHC 2345 (Ch)

An executor who failed to comply with a court order requiring an inventory of the estate and account of the administration was found to be in contempt of court and sentenced to a four-month custodial sentence. This case highlights the seriousness of executor duties and the importance of adhering to those duties at every step in the estate administration.

A four-month custodial sentence was held to be justified by the Judge because:

• The claimants were prevented from inheriting their share of the estate for three years (two years after the sale of the principal asset).
• The deliberate breach of the order was the sole responsibility of the executor, whose conduct had demonstrated that he had "deliberately decided not to engage with the claimants, their solicitors and the court process". His failure to engage with the proceedings, and take steps to mitigate the consequences of his actions, was indicative of a high level of culpability.
• There was no attempt to co-operate with the claimants.

The Judge found that although he could not justify suspending the custodial sentence, the executor would not be able to fulfil his role of administering the estate to the claimants from prison and therefore decided to suspend the sentence in order to give the executor one last chance to comply with the court order requiring the executor to produce a full inventory of the estate to the claimants.

Facts

Hazel Totton died on 25 July 2019, leaving three specific legacies and the remainder of her estate to be shared 50:50 between her grandchildren, Hollie Totton and Daniel Washer (the claimants), and her son (the defendant). The defendant was the executor of the estate.

The defendant sold the deceased’s property, the principal asset in the estate, for £425,000 on 7 April 2020 after obtaining the grant of probate on 27 November 2019. The claimants made multiple attempts to contact the defendant to obtain information in relation to their grandmother’s estate and received no response.

The claimants subsequently made an application on 12 April 2021 under CPR 64.2 seeking the following relief:

• a full inventory of the deceased’s estate;
• the distribution of the estate in order for the trust to be brought to an end; or, alternatively
• for the removal of the defendant as executor and for the first claimant to be appointed as the new trustee; and
• an injunction to restrain the defendant from distributing or dissipating the estate before the dispute was resolved.

Meade J granted the claimants a freezing order over the assets in the estate. The order provided that the defendant was to provide a full inventory of the estate and swear an affidavit providing how he had administered the estate.

The defendant failed to comply with the order and the claimants subsequently issued a committal application against the defendant.
Mr. Justice Leech found the defendant to be in contempt of court. He also found that:

• The conduct of the defendant caused the claimants to suffer significant prejudice as they were prevented from inheriting their share of the estate for three years (two years after the sale of the principal asset).
• The defendant was highly culpable, in that he knew by failing to provide the relevant information and swearing the affidavit, he was committing breaches of the Order and he did not take any reasonable steps to remedy this or otherwise engage with the claimants, their solicitors and the court process.
• The defendant was solely responsible for the breach of the order. The terms of the order were simple, and he had not instructed solicitors as any reasonable person would have done if they had difficulty understanding the order.

The Judge found on an application of Solicitors Regulation Authority Ltd v Khan [2022] EWHC 45 (Ch) that a four-month custodial sentence was appropriate for the defendant’s “serious, contumacious flouting of orders of the court”. However, the defendant’s apology and admission at the hearing was enough for the Judge to reduce the sentence to three months. The Judge recognised that the defendant would not be able to perform his role as the estate executor from prison, and so provided him with “one last chance” to comply with the freezing order.
It is notable that the custodial sentence was applied for a deliberate flouting of a court order as opposed to poorly administering the estate, nonetheless the bar for executors when carrying out their duties is high and it is not acceptable for executors to simply bury their heads in the sand when faced with disgruntled beneficiaries. The court will not hold back in demonstrating its disdain for an abuse of power, especially when an innocent party who is standing to benefit is injured as a result.

See judgment here.

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This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2022