Executor Committed To Prison For Repeated Failure To Comply With Court Orders

The High Court recently dealt with an application to commit an Executor to prison for repeatedly breaching Court orders (Totton & Anor v Totton [2022] EWHC 2345).

Totton & Anor v Totton [2022] EWHC 2345

Case background

The Executor in question, Mark Totton (Executor), is the Executor of his late mother’s estate and two of the Beneficiaries, Hollie Totton and Daniel Washer (Beneficiaries) brought a claim against him on account of his failure to disclose the estate information to them and his failure to distribute the net estate.

The Deceased was the Beneficiaries’ grandmother. Under her Will, the Beneficiaries were due to receive specific legacies of £10,000 each, along with 50% of the net estate which was placed in a trust. The trust mainly consisted of the Deceased’s property which was sold for £425,000. The net proceeds were in trust but the Beneficiaries informed the Executor that they wished to terminate the trust. They asked repeatedly for information, and the Executor did not reply, and when the Beneficiaries asked him to distribute the estate, the Executor also did not respond.

Court proceedings were issued in April 2021 and the Beneficiaries asked the Court for various orders including an order to provide them with a breakdown of all transactions involving the estate, and distribution of the trust monies. The Beneficiaries also asked the Court to consider making more serious orders including an injunction preventing the Executor from spending the estate money, an order removing the Executor from his role, and a further order appointing one of the Beneficiaries as replacement trustee.

The High Court’s decision

The High Court issued a freezing injunction against the Executor, which prevented him from distributing the estate monies until the case had been resolved. The Executor was given a week to produce a breakdown of the estate assets including details of where they were being held. He was also ordered to give a sworn statement – an affidavit – exhibiting full estate accounts, within three weeks. He failed to do either.

An injunction is a serious remedy, and any individual found to be in breach of an injunction can be committed to prison for contempt of Court. The Beneficiaries applied to Court for the Executor to be committed to prison as he had failed to comply with the previous Court order, and had quite possibly breached the terms of the freezing injunction. By this time, the Beneficiaries had been waiting over two years to receive their shares of the net estate.

At the hearing, the Executor admitted to not having cooperated and stated that he had buried his head in the sand, failing to open letters sent to him by the Beneficiaries’ solicitors. He was found to be in contempt of Court.

The Court exercised its power to impose a sanction on the Executor and decided that a prison sentence of 4 months could be imposed on him, owing to the fact that the breach was deliberate and serious, and there had been a long history of him not responding to requests for information, causing significant prejudice to the Beneficiaries. There was no evidence of him having to act in the way he did because of outside pressure from others.

However, an olive branch was offered to the Executor. The sentence was suspended provided he distributed to the Beneficiaries their share of the estate by a specific date.

Comment

This case demonstrates that the High Court can and will sentence estate Executors to prison for not fulfilling their duties, although this power will usually only be invoked in the most serious cases.