Diary of a busy practitioner, juggling work and family somewhere in England
‘Why do you get more slices of pizza than me?’ moaned Deceptively Angelic Looking Child 2 recently.
‘Because I’m two to three times the size of you,’ I replied.
‘Why does DALC1 get more pizza than me?’
‘She is also bigger than you.’
‘Why do I have to eat peas and she doesn’t?’ asks DALC1.
‘She doesn’t like them and you do,’ I say, ‘she will get scurvy and you won’t.’
‘Why does she get to have more sleepovers?’
‘Because her friends don’t trash the place.’
‘Why do I have to feed the dog when I did it yesterday?’
‘Because you are standing right next to the dog food and she is upstairs.’
Welcome to my life. My life, where ‘fair’ isn’t always ‘equal’ or ‘taking a neutral stance’.
For example, we pay for music lessons for DALC1. To be fair, do we:
a) Make an equal payment into DALC2’s piggybank every week;
b) Insist she also has music lessons; or
c) Be glad we only have one lot to pay for and just be mindful that DALC2 could end up with an expensive hobby at any time in the future?
Of course, the answer is (c).
If the BBC interview someone about the rainforests reducing in size, do they need a climate change denier on the sofa too, to say the rainforests are growing in size? To show they are impartial? No! That would be mad!
I am getting to my point. It is this. In one particular area of my work, I am getting sick of executors and trustees (and the solicitors acting for them) being neutral at all costs. Often, of course, these are people dabbling in litigation but not always. Some of the people who have caused me to write this article are specialist solicitors. They have heard the bit of course about being neutral (particularly in 1975 act claims) and somewhere deep down their subconscious have thought this could get them out of a difficult decision or two, and lived and died by it since. These are also generally the same people that won’t have a conversation on the phone with you to narrow the issues.
It is, of course, right that an executor should remain neutral in many types of claim to stand the best chance of his costs being paid from the estate. It is right you will need court approval or an indemnity from the beneficiaries on occasion before taking certain action. It is also right that you shouldn’t take legal advice from an anonymous woman who steals pizza from her children and can never see two sides to any argument. But, with those significant caveats, I do not believe there is a need to be neutral in the following scenarios:
The claimant (or his solicitor) is being an idiot in the course of litigation
If a claimant is messing you around, you can be firm with them about it. If they keep missing deadlines, you can tear them off a strip. This is about conducting litigation well, and if they are not doing that, you can tell them. You have a duty to administer the estate in a timely fashion, for goodness’ sake. Being neutral on the substantive matter does not mean sitting back entirely.
You are the executors’ solicitor and one of them is being a bit silly
Of course, where you have two clients, you won’t be able to act if there is a conflict between them. But if one tries to claim for dry cleaning after the funeral and the other one objects? Mate, object along with him.
If you believe, for example, a beneficiary or claimant misappropriated funds from the deceased, you can – and should – look into this. You can be neutral without ignoring this sort of thing.
Which leads me on to my next point – ‘being neutral’ is not a way to get out of doing anything at all. As an executor or trustee you have duties to do your job. If someone is preventing you from doing them, you need to work out how you can continue.
Treating beneficiaries differently from each other
Like with the pizza, there may be a perfectly good reason for treating one beneficiary differently to another. Fair is not the same as equal.
You prepared the will and now there is a claim against it
For all sorts of reasons, if you did a good job, defend yourself and the way you prepared the will!
As usual, I think it comes down to being practical and sensible, and just being aware of your limitations and seeking counsel’s advice if in doubt.
Some facts and identities have been altered in the above article