Those of us who have been following the BBC TV series Wolf Hall may feel that very little has changed in 500 years. We do not have to look too far or hard for modern examples of abuse of power, whether internationally, nationally or even locally. The atmosphere of fear and uncertainty as to who will be next to fall out of favour within Henry’s Court was both divisive and destructive, much as we still find today in some modern organisations. Perhaps this is why Wolf Hall has been such compelling viewing and has received so many accolades.
We all know that Henry VIII had 6 wives but perhaps not that in 1547 he left a Will appointing 16 executors, and disadvantaging all claimants of the House of Stuart. This unusually large number of executors was probably intended to create a balance, although as 3 of them died before Henry this is not what actually happened, and arguably this imbalance has affected the Constitution and religion of the country as a whole down to this day.
In the English Courts from 2012 – 2013 there was a more than a threefold increase in the number of claims for ‘breach of fiduciary duty’, where lay executors were accused of acting improperly in dealing with the administration of an estate. It has been suggested that this stems from the increase in ‘DIY executors’, who fail to obtain professional legal guidance and as a result either make a genuine mistake in carrying out their duties or intentionally favour another family beneficiary. Unfortunately there are even cases where executors act dishonestly and raid an estate for their own benefit. In either case an executor may find themselves personally liable, particularly if they have already distributed the estate.
Acting as an executor is not always straightforward, and even where legal help and guidance is sought the role of executor may involve the making of difficult decisions, attracting criticism from others. Understandably this can be very stressful. Appointing only a family member or a beneficiary as an executor in cases where the beneficiaries are in conflict can be a false economy. Friction is particularly common where there are children by a former marriage, as there may be long-standing un-aired resentments. It is important to appoint executors who get along with each other as otherwise any personal difficulties between them can cloud their judgement in dealing with an estate. Having an independent professional executor can be an advantage as they will be able to act impartially when difficult decisions need to be made.
Solicitors are often approached by a beneficiary who has become frustrated by delays by a lay-executor who is simply unable to devote the time to progress matters or decide how best to proceed. If these issues are not dealt with in a timely manner or the conduct of the executor is called into question a court action may be raised. This can be very expensive, and even if the defaulting executor is not found to have been blameworthy and therefore personally responsible for the legal fees, those fees may have to be paid from the estate which would otherwise have passed to the entitled beneficiaries.
If you have any queries regarding the issues referred to in this article please contact our Private Client Department.
