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Executor sentenced to prison - a stern reminder about personal representatives’ duties

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About Elise

By Elise Roberts

Being entrusted with distributing an estate and attending to the last wishes of a loved one is a serious matter and the majority of people carry out their role with the respect and due care that it demands. Personal representatives who don’t take their duties and role seriously, however, could find themselves wound up in prison; as Mark Totton recently discovered in the case of Totton & Anor v Totton.

What is a personal representative?

A personal representative is the term used to describe either an “administrator” or an “executor”. An administrator will deal with a person’s estate when there is no valid Will left when they die. An executor is appointed by the deceased in their Will to distribute their estate.

In this case, Mark Totton was sole executor to his late mother, Hazel Totton, who died in July 2019. The grant of probate was obtained in November 2019, which provided him the authority to attend to Hazel Totton’s estate. Almost 3 years later, the estate has still not been administered, the beneficiaries have not received their inheritance, and Mark Totton is now in prison.

What duties do personal representatives have?

Legislation, such as the Administration of Estates Act 1925 and the Trustee Act 2000, imposes various duties, obligations and responsibilities on personal representatives. For example, they need to collect in assets, keep them safe and distribute them as per the Will or intestacy rules. If they are in breach of any of these, they may be held personally liable to the residuary beneficiaries.

The estate was modest and relatively simple, so how did Mark Totton get it so wrong?

The case

Despite requests from his niece and nephew over a number of months, Mark Totton did not pay either of them their grandmother’s inheritance, and consequently they pursued their executor uncle in court.

In March 2022, the court ordered Mark Totton to comply with some of his duties. He was ordered to set out the estate assets, provide details of how he had administered the estate and where the funds were being held within 1 week. He was also ordered to swear an affidavit and set out the full estate accounts within 3 weeks. In addition, the court granted a freezing order which prevented Mark Totton from dissipating the estate until this matter had resolved.

Mark Totton did none of these, and in August 2022, he was held in contempt of court. Mark Totton failed to attend the next court hearing and was later arrested by the police.

At his sentencing hearing, Mark Totton apologised to the court and said that he had just “buried his head in the sand” by not opening correspondence, and was “relieved when the police turned up to get the matter resolved”. It was only during this hearing that Mark Totton finally disclosed that the value of Hazel Totton’s estate consisted of her property and modest savings. This matter however, is far from resolved and the whereabouts of the money is still unknown.

Based on the value provided, Hazel Totton’s residuary estate is estimated to be £475,000. Mark Totton was due to inherit half, being £237,500, and the remaining half was to be shared equally between the niece and nephew, being £118,750 each. Not an insignificant amount of money to still be waiting for.

The Judge found that Mark Totton had “deliberately failed to comply with his duties as an executor and deliberately ignored the Order”, and, as a result, Mark Totton was sentenced to a 6-week custodial sentence and ordered to pay £18,000 towards his niece’s and nephew’s legal fees. He was, however, provided a further chance to comply with his obligations by 10 October 2022 to prevent further delay caused by his sentence. He failed to take this opportunity.

Mark Totton’s niece and nephew now have to wait while Mark Totton serves his sentence and possibly have to brace themselves for further litigation before, and if, they will receive their inheritance.

Lesson to learn

It is unclear what has become of the money nor the motive behind Mark Totton’s inept treatment towards his duties as an executor.

Was Mark Totton’s proposed benefit of £237,500, loss of his job, damage to his reputation and family connections worth being sent to prison over? This is a question which should be in the back of all personal representatives’ minds when carrying out their duties to administer an estate - is it worth it?  

The outcome of this case may seem draconian but, Mark Totton had committed serious and deliberate breaches of duty and failed to comply with a court order. This case serves as a stern reminder of the serious duties personal representatives have and the consequences of non-compliance. Committal to prison is not out of the question.

Contact us

We recognise that being a personal representative can be daunting and knowing how to proceed can be a minefield - especially at a time which is emotionally charged and stressful with the loss of a loved one.

If you are a personal representative who needs some assistance with a dispute which has arisen, or you have concerns about a personal representative administering an estate, we are here to help.

Our Contentious Trusts and Probate team is led by Stuart Downey, Partner in Dispute Resolution. For an initial no obligation discussion, please call 01483 752746 or alternatively email and Stuart will be pleased to assist.