09 March, 2020
A fundamental part of any Will or Trust are the Executors and Trustees. Executors are responsible for the distribution and administration of the estate and it is a position of great trust and responsibility. Thankfully, Executors usually carry out their duties fairly and carefully, however there are cases where they do not act properly, such as in the recent case of Loveday V Border.
When Anita Border made her Will, she appointed a trusted neighbour, David Loveday, to be the Executor of her estate.
Ms Border passed away in 2015 and Mr Loveday was to distribute the sum of £220,000 equally between two of her close friends, Parminder Gibbs and Emma Cullen (who was also Mr Loveday's partner).
Ms Cullen received her £110,000 share of the estate when Ms Border's property was sold, but Mr Loveday gave nothing to Ms Border's friend Mrs Gibb, who subsequently issued court proceedings to try and recover the money. The High Court heard how Mr Loveday had repeatedly lied to Mrs Gibbs when she tried to obtain her inheritance.
The High Court removed Mr Loveday as Executor in 2017 and held him to be in contempt of court and to be "personally culpable" for failing to properly control the assets of the estate. Mr Loveday was given the opportunity to pay Mrs Gibbs her legacy, however he had "frittered" the money away, using it to pay his debts, pay for holidays and buy an Audi. Mr Loveday failed to account for where the money had gone after the Court ordered him to do so and he was jailed for six months.
After numerous delays due to Mr Loveday insisting that the money was safe in an ISA, he provided no evidence of this and he eventually admitted fraud. Judge Brendan Finucane QC sentenced Mr Loveday to a further three years and seven months in prison, describing Mr Loveday's behaviour as "an abuse of trust over a prolonged and sustained period of time" for which he had "shown absolutely no remorse."
It is a criminal offence for Executors to act in this way and the Courts will take a stern view of anyone who deliberately and blatantly abuses their position. An Executor will also be held personally liable for any loss to the estate as it is their duty to control and protect the estate assets, and a failure to do so is a breach of trust.
If there is suspicion that an Executor is not acting properly, it is important to obtain legal advice as soon as possible, as it is with any contentious probate issues. Advice can also be given in relation to concerns about undue influence or lack of capacity, for example if there are concerns that a testator has been forced to make a will or create a lifetime gift against their will, or if they did not have the mental capacity to understand the consequences of making the Will.
For more information contact Sarah Corbridge in our Contesting a Will department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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