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HomeLegal InsightEXECUTING A WILL – DON'T BURY YOUR HEAD IN THE SAND

EXECUTING A WILL – DON’T BURY YOUR HEAD IN THE SAND

Helen Greaney
By Helen Greaney

An executor of a will has recently been jailed in the High Court for failing to comply with his duties as an executor. 

Carolyn Watson, private capital solicitor at Clarke Willmott, explores the details of the case, what executors’ duties entail, why they are important – and why it is always important to seek legal advice before things go wrong. 

An executor is a person who has the responsibility of administering a deceased person’s estate. They are appointed by a person’s will and their role begins when that person dies.

Executors have a whole host of responsibilities, including:

  • organising the payment of any tax due, such as inheritance and income tax
  • applying for any applicable tax reliefs
  • paying the deceased’s liabilities
  • identifying and collecting in all the assets
  • locating the correct beneficiaries
  • applying for a grant of probate (if required)
  • distributing the estate to the beneficiaries in accordance with the deceased’s will

Failure to perform these obligations can leave an executor personally liable for matters concerning the deceased’s estate. Furthermore, it is incredibly important an executor fulfils their duties, or they could find themselves being subject to serious penalties.

The recent case of Totton and Another v Totton provides a graphic illustration of this.

The case concerns the estate of Hazel Totton, who died in July 2019 and left a will appointing her son Mark Totton, aged 51, as executor. She left half of her estate to Mark and the other half to her grandchildren, Hollie Totton and Daniel Washer.

The primary asset in the deceased’s estate was her house, which sold in April 2020 for £425,000. To date Hollie and Daniel, of Essex, have still not received the inheritance they are entitled to in the will and Mark Totton has failed to account for their inheritance.

Hollie, 25, and Daniel, 19, appointed solicitors who wrote to Mark over a period of eight months requesting him to administer and distribute the estate. No reply was received to any of these letters. Hollie also contacted Mark via telephone calls and texts asking when her and Daniel would receive their inheritance. In October 2020, Mark advised Hollie they would receive their inheritance “within days”.

In April 2021, Hollie and Daniel brought a claim against Mark Totton calling for a full account of the deceased’s estate and for the same to be distributed. With Mark having taken no action, the court made an order in March this year, directing him to provide a full account of the deceased’s assets and their location to Hollie and Daniel’s solicitors within three weeks. Again, Mark Totton failed to take any action.

The court produced further official documents in August which were similarly ignored and Mark Totton failed to attend subsequent court hearings later that month, and then again in September.

A warrant was executed and Mark Totton was brought before the court on 15th September. The court provided Mark Totton with several chances to comply with his duties as executor, namely, to correctly distribute the estate. He admitted that he had “buried his head in the sand” regarding the administration of the estate and he received a four-month prison sentence. The court gave one final deadline, stating that the jail term would not take effect so long as the estate was distributed by 6th October.

The following day Mark Totton was jailed for six weeks for contempt of court after failing to comply with the judge’s order to set out the assets of the estate within a certain time frame and to give a full account of his dealings with it.

The court also noted that he had not instructed solicitors to assist him with his duties, which would have likely prevented proceedings being brought against him.

Acting as an executor is sometimes straightforward, however it can very quickly become confusing, convoluted and time-consuming. Here at Clarke Willmott we have the expertise to assist executors with as much or as little as is felt necessary.

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton, and Taunton.

For more information visit www.clarkewillmott.com

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