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Court battles over mismanagement of wills triple

Improper executors caught stealing and fraudulently distributing the assets of family members

18 August 2014

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The number of claims made against executors of wills for mishandling an estate has more than tripled last year, according to law firm Hugh James.

Figures show that there were 368 claims for 'breach of fiduciary duty' launched in the London High Court, Chancery Division in 2013. This is up from 107 claims over the previous 12 months. A solicitor at Hugh James suggests that the rise is as a result of an increase in 'DIY' executors and trustees.

The use of acquaintances or family members as executors is becoming more frequent but is bringing with it substantial problems. According to the firm, claims can range from theft of assets by executors to fraudulent distribution of assets to favour certain beneficiaries of the will above others.

Matthew Evans, a partner at Hugh James, says: "Using a friend or acquaintance to act as the executer of a will can be a false economy. Many families are following this path in an attempt to save money but finding it costs them more than they bargained for when they have to use the courts to recover assets after a mistake or even theft by the DIY executor. The amount of money at stake can tempt some amateur executors to raid the estate for their own benefit."

An increase in property prices may have led to a greater temptation for executors to steal from the estate they're managing, comments Evans: "Surging house prices, especially in London and the South East, mean there is more money at stake in a DIY probate. Unfortunately this seems to be tempting some amateur executors to dip into the pot for themselves."

Evans advises that lay executors have also been caught out purposely misinterpreting wills to favour one beneficiary over another - particularly when the deceased has a complex family arrangement: "Often when there is a former partner involved and the executor has personal ties to one side of the family it can lead to complications.

"Amateur executors may not want the money of the deceased to go outside of their immediate family and so take matters in their own hands distributing the assets as they see fit, even if that means they are acting contrary to their responsibilities as a legal executor," says Evans.

An executor of a will can be held responsible for any errors made in the distribution of assets to the beneficiaries. Evans explains that executors can face legal claims from beneficiaries if they do not distribute the assets as intended and can be forced to compensate the beneficiary out of their own pocket.

"Ignorance of the law can be a stumbling block for lay executors," says Evans. "Mistakes can be made due to inexperience, such as delaying the sale of assets, which can cause a decline in value. In other cases, it's not just ignorance of the law, but greed that is the problem."

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Wills, Trusts & Probate