Executor to be sentenced for failure to carry out estate administration duties

  • Posted

Should the executors or administrators of an estate fail to carry out their legal duties with due diligence and in a timely fashion, or concerns are raised over their conduct, any beneficiary or interested party can make a Court application to seek their removal. If the application is granted, the Court will then appoint new executors or administrators.

Any Court order of this nature will usually require the outgoing executors or administrators to hand over all the relevant documents and funds to their successors to complete the process. However, in the recent case of Frejek V Frejek [2020], the former executors failed to comply with such an order.

Brenda Frejek died in April 2009, leaving two sons and a daughter. Stephen Frejek, the defendant, was appointed as executor of his late mother’s estate. However, concerned at the extremely slow progress made in administering the estate, his brother, Andrew, applied to the Court for Stephen’s removal as executor. Furthermore, as a provision of the order, Andrew sought to replace his brother as executor, and this application was granted in June 2017.

In accordance with the standard practice outlined earlier, the order instructed Stephen to transfer all relevant documents and funds to Andrew. Stephen was also required to make an affidavit declaring the estate accounts and issuing an inventory of the assets. When Stephen failed to comply with any of these requirements, Andrew sought a mandatory order seeking Stephen’s compliance and this was granted in December 2018.

The mandatory order reiterated Stephen’s obligations and, due to its mandatory nature, it included a penal notice which compelled Stephen to comply within 28 days or be held in contempt of Court and face the risk of criminal sanctions, such as a fine and/or imprisonment.

Again, Stephen failed to comply with the order within the given time period and so Andrew issued a committal application which eventually came before the Court until May 2020. Stephen had still not taken any steps in accordance with the order and had failed to engage with the Court proceedings at any point.

The Judge duly held Stephen in contempt of Court for failure to comply with the mandatory order, and ordered  a bench warrant for Stephen’s arrest ahead of sentencing. The outcome of the sentencing hearing is yet to be published but, in view of Stephen’s persistent refusal to comply with the Court’s orders, it’s likely that a custodial sentence or hefty fine will follow.

Although an extreme example, Frejek V Frejek [2020] underlines the importance of executors and administrators complying with their legal obligations in full. If you need advice on your obligations or have problems with executors or administrators please contact us for further advice