elderly
Emma Salmon looks at the recent case of Frejek V Frejek [2020], which is a cautionary tale to all Executors/Administrators and serves as a useful reminder of the importance of ensuring compliance with their legal obligations.
  • 27th May 2020
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Executors and administrators have a legal duty to administer the Deceased’s estate so as to ensure that all debts are paid and the net estate is then distributed to the beneficiaries in accordance with the Deceased’s wishes, or to those entitled to inherit under the rules of intestacy. Although legislation does not provide a concrete deadline within which timeframe an estate administration must be completed, it should be administered diligently and within a reasonable period of time after the Deceased’s death.

 

If the Executors/Administrators are not carrying out their duties in a timely manner, or there are other serious concerns regarding the manner in which they are handling the estate administration, any beneficiary or person with an interest in the estate can make an application to the Court to seek the removal of the Executors/Administrators. If granted, the Court’s would usually appoint an independent Executor (usually a professional) to replace the Executors/Administrators initially appointed.

 

If such an order is granted, the initial Executors/Administrators will usually be required to provide the incoming Executor/Administrator with all of the estate’s papers and funds to enable the estate to be administered. In this recent case, such an order was granted, but the outgoing Executor failed to comply.

 

In this case, the Claimant was the brother of the two Defendants (the outgoing Executors), who together were the three children of the Deceased, who died on 10 April 2009. By June 2017 little, if anything, had been actioned in relation to the estate administration and the Claimant made his application to be appointed in place of the Defendants as Executor. This was granted on 19 June 2017 and required the Defendants to transfer all of the estate paperwork and estate funds to the Claimant ad to make an affidavit exhibiting the estate accounts with an inventory of the estate assets. None of these tasks were undertaken.

 

The Claimant obtained a mandatory Order from the Court on December 2018, reiterating the obligations imposed on the Defendants. A mandatory order includes a penal notice compelling compliance within 28 days, or they would be in contempt of court and at risk of criminal sanctions including a fine or imprisonment.

 

Despite this, by February 2019, the Defendants had still not complied with the Orders and so a committal application was issued. The hearing for this was not held until this May 2020, but still by this point the Defendants had not complied with the Orders or engaged in any way. The Defendants were held in contempt of Court and a bench warrant was issued for his arrest, so that he could be brought to the Court for sentencing. Unfortunately the outcome of the sentencing hearing is currently unknown, although given his conduct so far, there is a real risk that this will be custodial.

 

This case acts as a cautionary tale to those who have been appointed as Executors or Administrators to ensure compliance with their legal obligations in administering estates.

 

If you are concerned as to how an Executor or Administrator is administering an estate, our Contentious Probate team would be happy to advise you on your position. Alternatively, if you are an Executor or Administrator and you want help with administering an estate, to ensure compliance, our estate administration Team would be happy to assist you with this, please get in touch by calling 01622 698000.