The recent decision of Totton v Totton is food for thought for beneficiaries who have found themselves stuck in the middle of the estate administration process – and for executors who are keeping them there.
Many people have heard of the ‘executor’s year’ – the idea that an executor should be given a year from the date of death to wrap up the estate administration – but this is a guideline, not a rule. What can be surprisingly difficult is forcing executors to deliver up your share of the estate.
The Totton family’s situation is an extreme one but might prove a wake-up call for executors who show blatant disregard for their obligations.
The two claimants, Hollie Totton and Daniel Washer, are the grandchildren of the late Hazel Totton. The defendant, wedding planner Mark Totton, is their uncle (Hazel’s surviving son).
Hazel passed away in July 2019. She named Mark as her executor. She divided her estate in half: 50% to Hollie and Daniel between them, and 50% to Mark. Mark duly obtained a grant of probate on 27 November 2019. Most of the value in Hazel’s estate was tied up in her home, which Mark sold on 7 April 2020.
On 31 July 2020 – already over a year since Hazel’s death, and almost four months since he sold the house– Hollie and Daniel’s solicitors wrote to Mark seeking information about the estate. They wrote again in November 2020 and February 2021, asking Mark to administer and distribute the estate. Mark did not reply to any of these three letters. Daniel also texted his uncle but, likewise, received no response.
Not having heard, on 12 April 2021 Hollie and Daniel applied to Court (under Part 64.2 of the Civil Procedure Rules) to progress the estate administration.
In March 2022, the judge ordered Mark to give Hollie and Daniel a full inventory of the estate assets and an account of what he had done with them so far. The order made clear that ‘Wrongful refusal to provide the information is contempt of court and may render the respondent liable to be imprisoned, fined or to have his assets seized.’
Mark failed to provide any information. Hollie and Daniel therefore applied for him to be found in contempt of court.
Two (or arguably three) hearings followed. The first, where Hollie and Daniel’s application was heard, took place in Mark’s absence – he simply did not turn up.
The judge decided it was appropriate to continue, and unsurprisingly found Mark in contempt of court: the terms of the Order were clear and he had failed to comply with them.
There was then a separate sentencing hearing. Mark didn’t turn up and so the judge issued a ‘bench warrant’ to secure his attendance. When he did turn up Mark admitted that he had ‘buried his head in the sand and received a number of envelopes which he just left unopened’.
The judge decided that a four-month custodial sentence was appropriate because of (i) the prejudice which Hollie and Daniel had suffered by being deprived of their inheritance; (ii) the fact that Mark’s behaviour was down to him alone, with no pressure from third parties; (iii) Mark knew that he was breaching the Order; (iv) his failure to engage at all with the legal process; and (v) his sole responsibility for his failures (he had not, for example, engaged solicitors to deal with the administration). All that weighed in the balance was that he did apologise in Court and admit his breaches, as a result of which the judge reduced the four months to three.
The judge also gave Mark ‘one last chance to comply with the Order’, postponing the beginning of his sentence for three weeks. Reports are that even this did not persuade Mark and he went to prison. He was also ordered to pay Hollie and Daniel’s costs.
Executors should not need to be alarmed by Mr Totton’s fate. The prison sentence was not solely because he failed to carry out his duties, but because that failure led to an application by his niece and nephew, which led to a court order, which he disregarded.
The case does, however, give reassurance to beneficiaries that the Court takes an executor’s duties seriously. It will not condone endless delay and if necessary it will hold executors to account in stark terms.