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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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A cautionary warning for executors
20 May 2020

Executors and administrators (if the deceased died without a will) have a legal duty to administer the deceased’s estate to ensure all debts are paid and the net estate then distributed to beneficiaries in accordance with the deceased’s will or the rules of intestacy if there was no will. These steps should be carried out diligently and within a reasonable period of time.

If the executors or administrators are not carrying out their duties expeditiously or there is some other concern regarding their handling of the administration of the estate, any beneficiary or interested party can make an application to court seeking the removal of the executors or administrators. If granted, alternative executors or administrators, often of a professional nature but not always, will then be appointed by the court.

Any order made in this regard will usually include provision that the outgoing executors or administrators deliver up to the incoming executors or administrators all the estate’s papers and funds to enable them to conclude the administration of the estate.

But what happens if having obtained such an order the outgoing executors or administrators fail to comply with the same? Well this was the situation which the court had to consider in the recent case of Frejek V Frejek [2020].

Facts of the case

The claimant, Andrew Frejek and the two defendants were brothers and sister. They were the three children of Brenda Frejek who died on 10 April 2009. Stephen Frejek, the first defendant was appointed executor of his late mother’s estate but by June 2017 little, if anything, had been done by him as regards the administration of the estate. Andrew therefore made an application to remove him as executor seeking an order that he be appointed executor in Stephen’s place. Andrew’s application was granted at a hearing on 19 June 2017.

Order to remove executor

The June 2017 order included directions that Stephen be required to transfer all of the estate’s papers and funds to Andrew. Stephen was also required to make an affidavit exhibiting the estate accounts and providing an inventory of the estate’s assets. Stephen did neither of those things. Accordingly, Andrew sought a mandatory order seeking Stephen’s compliance. That order was granted in December 2018. It reiterated Stephen’s obligations to deliver up the estate’s papers and funds and included additional provisions that he provide further information and documentation. Crucially, as a mandatory order it included a penal notice compelling Stephen’s compliance within 28 days or in contempt of court and at risk of criminal sanctions including a fine and/or imprisonment.

Committal application

By February 2019 Stephen had still not complied with the order and so Andrew issued a committal application.
For various reasons that application did not come before the court until May 2020. By that stage, Stephen had still not complied with the terms of the order. Indeed, he had failed to respond or engage in any way with any aspect of the court process.

The matter came before Mr Justice Roth. Applying the criminal standard burden of proof of beyond all reasonable doubt he held Stephen in contempt of court in respect of his failure to comply with each of the terms of the December 2018 order. Accordingly, he ordered that a bench warrant be issued immediately for Stephen’s arrest so that he could be brought before the court for the purpose of sentencing.

The outcome of the sentencing hearing has not been published but in view of Stephen’s blatant refusal to comply with the court’s orders there must be a very real risk that any sentence will be custodial in nature. At the very least he is likely facing a substantial court file.

Conclusion

This case is a cautionary tale to all executors and administrators and serves as a useful reminder of the importance of ensuring compliance with their legal obligations to ensure that the administration of estates is dealt with efficiently and in a reasonable period of time.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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