It seems that a month cannot go by without a significant news story involving wills. This time it is the figures released from the High Court showing that claims for mishandling the estate of a deceased person have tripled in the previous twelve months. The figures show that claims for breach of fiduciary duty have increased from 107 in 2012 to 368 in 2013.
Fiduciary duty covers a number of aspects but broadly arises when someone is placed in a position of trust in relation to a person's assets and being an Executor of a will is an example of where this duty arises. An Executor is a person appointed in a will to gather in the assets of the estate and distribute them in accordance with the will.
Examples of the breaches committed are the theft of assets by Executors to handing assets of the estate to favour some beneficiaries over others.
Some commentators in the legal press have attributed this rise in breach of fiduciary duty to the increased use of non professional Executors; so called 'DIY Executors'. It is fair to say that the High Court figures do not directly support this supposition but it does point out the importance of ensuring that the Executor that you appoint in your will is both trustworthy and capable. Court proceedings to deal with problems with the administration of an estate can be very divisive and in some cases can take up all of the money contained in the estate.
A person has a choice of whom to appoint as an Executor and often choose a friend or family member. Many people however also want the comfort of knowing that their estate will be handled by a properly insured, qualified professional and appoint a solicitor to act as their Executor. There is obviously a cost implication to doing this and the solicitor's professional body, the Law Society, requires solicitors to outline these potential costs at the time the will is made.
Richard Roberts, the Chairman of the Law Society's wills and equity committee said:
'Many wrongly perceive the task to be simpler than it is.'
'There will always be lay executors who can do the job well and are perfectly trustworthy, but there will always be group of executors who either administer an estate badly through ignorance or administer it fraudulently,'.
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