Dealing with elusive executors

Being a personal representative of a deceased person’s estate is often not an easy task. Personal representatives have to comply with their legal duties and communicate with creditors, debtors and beneficiaries. Failing to act properly can have serious consequences as demonstrated in the case of Frejek v Frejek [2020] where a warrant was issued for the personal representative’s arrest.

A personal representative is an executor who is a person named as such in a will, or an administrator who applies to deal with an estate when there is no will (known as intestacy). Personal representatives are entrusted with the responsibility to carry out the deceased’s wishes, protect the estate and distribute it to the correct beneficiaries. They should act impartially, diligently and honestly. The duties of an executor are set out in Section 25 of the Administration of Estates Act 1925.

Most estates will require a grant in order to administer and distribute the estate. When an executor applies for a grant of probate, or an administrator applies for a grant of letters of administration, they must confirm a legal statement which includes confirmation that:

  1. They are applying on the basis of the last will of the Deceased;
  2. They will collect the whole estate;
  3. Keep full details of the estate; and
  4. Keep a full account of how the estate has been distributed.

Many disputes arise where personal representatives delay in the estate administration, do not keep the beneficiaries informed of progress or there is a disagreement about the assets in the estate. The court has a variety of powers that they can use to ensure that progress is made with the estate administration. These include ordering a personal representative to obtain a grant of probate should they fail to do so, order an inventory and account of the estate to be produced, or in serious cases the removal of a personal representative.

The case of Frejek is a stark warning to personal representatives of the court’s powers where personal representatives fail to carry out their duties. In this case, Brenda Frejek died on 10 April 2009. The deceased had three children. Stephen Frejek, one of the sons, obtained a grant of probate after his mother’s death. Despite the deceased’s other children being beneficiaries of the will and entitled to an account of the estate assets, Stephen failed to keep them informed of the progress, even after the sale of the deceased’s property.

Over 8 years later, the deceased’s other son, Andrew, applied to the court for Stephen to be removed as executor and for Andrew to be appointed as personal representative in his place. Stephen failed to acknowledge service of the claim or engage with the court proceedings and therefore the order was granted without any opposition.

After eighteen months, Andrew obtained an order requiring Stephen to transfer all papers and funds of the estate to Andrew along with an inventory of the estate assets. After numerous unsuccessful attempts to serve the order on Stephen personally and an extension of time given for Stephen to respond to the court, it was eventually served on him by post. The order required Stephen to provide within 28 days:

  • up-to-date estate accounts;
  • the completion statement of the deceased’s property sale;
  • the original grant of probate; and
  • an inventory of the estate assets.

Despite this, Stephen breached the order. Andrew made a committal application for an order that Stephen be sent to prison for contempt of court and again Stephen failed to respond to the court proceedings. The judge considered it appropriate to continue with the matter in Stephen’s absence and held that Stephen was in contempt of court for failing to comply with his obligations set out by the court. A bench warrant was issued for Stephen’s arrest, with him to be brought to the court for sentencing.

This case may be an extreme example but highlights the common issues that can arise in with the administration of estates. Our Contentious Probate team’s expertise means that many of our cases involving difficult personal representatives or beneficiaries, are resolved without the court’s involvement.

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