From my experience, when I have undertaken private client work (will drafting) previously, one of the easiest questions to ask a client is ‘who would you like to be your executor or executors?’.
When a client new to preparing a will inevitably asks what an executor is, the reply is usually something along the lines of the executor being the person to administer your estate, who the client can trust with managing their affairs, and ensuring that their estate is distributed in the manner envisioned by their Will.
The virtue of ‘trust’ is a concept that is sometimes more considerably explored with a client before they instruct on who they wish to appoint as their executor(s), but more often than not a family member (whether it be a spouse, parent, sibling or child), or close friend, immediately springs to mind for them. It is, of course, also not uncommon for a client to want to appoint a professional (whether it be a solicitor, or an accountant) to be their executor.
Working in contentious probate, you come to discover that the role, or even title, of executor is coveted. I often wonder if this is because, for the appointee, it is acknowledgement or recognition that they are the person the deceased trusted the most with their personal affairs from beyond the grave. But, as Uncle Ben said to Spiderman – and you will forgive me for not being brave enough to quote a less contemporary source – ‘With great power comes great responsibility’, and any solicitor with an ounce of experience in private client or contentious probate work will tell you that even in a ‘straight forward’ will, the task is akin to a full-time job and, in the absence of being a beneficiary to the estate or a ‘professional’ executor, is a job that doesn’t pay!
When one considers the situations where things aren’t straight-forward, for one reason or another, the calibre of the person (or people) chosen to undertake the role of executor becomes ever more critical.
Rawstron & Anor (Executrices of the Estate of Lucian Freud) v Freud [2014] EWHC 2577 (Ch) is a case I stumbled upon recently in the midst of research. In this case, which concerned the famous artist Lucian’s Freud’s estate, the executors were his former, longstanding, solicitor (who had likely become a close friend) and one of his children (which were said to number at least 14!). His executors were the Claimants in the case, and had sought a declaration that they were absolutely entitled to the residue of Mr Freud’s estate. The case was defended by another of Mr Freud’s siblings, a son whose paternity was challenged by the executors but ultimately accepted for the purposes of the Claimants’ application.
The Claimants contended that the gift of residue was subject to a secret trust imposed by Mr Freud, and they elected in the proceedings not to reveal the terms of the trust, on the basis that it was Mr Freud’s wishes that it not be revealed to the Defendant (who was not a beneficiary). The Defendant averred that the residuary estate was given to the Claimants for their absolute benefit, but to hold on trusts not set out in the Will. He then sought to investigate whether these trust(s) were validly created, or whether there was an intestacy of the residue, to which he would be entitled to a share.
What this case demonstrates is the extent to which trust can be placed by the testator in those appointed to be the executors. It also demonstrates the extreme difficulty placed on executors, who can find themselves in the middle of stressful conflict that the deceased had often gone to quite complicated lengths (such as the creation of a secret trust!) to avoid.
Whilst this article is not a study on the pitfalls of poorly-contemplated estate planning, it does seek to highlight the crucial need to choose your executors carefully and wisely. One needs to consider whether an executor/beneficiary will be placed in a position that fatally jeopardises their ability to separate their duty as administrator and interest as recipient; when selecting two executors, one needs to consider whether they get along, or can work together, or by virtue of the terms of the Will end up with competing interests; an executor might also wish to consider updating their Will as their executor ages – is that person going to be well enough, or capable, to undertake a task that could become burdensome? An executor should also question what impact selecting a particular family member or friend (in lieu of a family member) might have on the relationship dynamic of their nearest and dearest. Unfortunately, executors are often not in a position to recognise when they are being taken advantage of, and in the absence of taking counsel from others, are unlikely to be able to take steps themselves to avoid selecting a delinquent executor.
Careful consideration of who to appoint as the executor(s) of your Will could reduce, or even prevent entirely, the likelihood of contentious probate litigation once the testator has left the mortal plane. At the very worst, choosing the right man (or woman) for the job best arms the deceased’s estate for conflict, should it be the case like that of Mr Freud that a colourful life can mean that a colourful death is inevitable.
If you wish to discuss any matter relating to this article – please contact our Probate Team
Simon Underwood – 01328 852817
Cindy Grand – 01328 852815
Marie Townley – 01328 852825
