Irwin Mitchell will, trust and estate disputes team succeeds in High Court

The will, trust and estate disputes team at Irwin Mitchell has succeeded in a High Court dispute that gives warning to the behaviour of executors and administrators.

Leeds-based Irwin Mitchell specialist will, trust and estate disputes solicitor Richard Smaller represented Kirsty Cadogan in her case against her brother, Kevin Cadogan.

Their mother, Veronica Cadogan, died in September 2011 and Kirsty and Kevin Cadogan, two of her five children, became administrators of her estate.

Her will dictated the estate, involving 14 UK and international properties thought to be worth around £2.4 million, should be shared amongst her five children equally.

Kirsty instructed specialist will, trust and estate dispute lawyers at Irwin Mitchell to handle her case as she first brought a claim against her brother and administrator Kevin in 2016 for an account of his dealings with the estate on the footing of wilful default.

She stated that the family business, which was being run by Kevin, had used five of the estate properties without paying occupation rent and that Kevin had failed to account for rental monies from other properties. Kirsty also sought to appoint a professional administrator in their place.

Kirsty had herself taken rent from the estate’s properties for her own personal use, but had always maintained she would pay the money she owed back and asked the court to allow her to account in common form. Kevin, however, counterclaimed for an order that his sister should account on a footing of wilful default.

The court therefore needed to decide whether the personal representatives of this estate should be ordered to account ’in common form’—that they only need to pay back any money they kept for themselves less any expenditure occurred—or if they should account on a footing of wilful default, meaning they should pay back the money the estate should have received had they been acting like a reasonable personal representative.

Barrister Francis Ng of Selborne Chambers was instructed by Irwin Mitchell to represent Kirsty in court.

Kevin must now account for the money he had kept from the estate as well as the money that the estate should have received, likely to be a considerable sum, following the High Court’s ruling.

Will dispute experts at Irwin Mitchell argue the case highlights the importance of personal representatives’ behaviour and that they should always act in the best interest of the estate—or risk a claim in court.

Smaller commented: “We are very pleased with the result for our client Ms Cadogan, which has been several years in the making.”

“Ms Cadogan always intended to pay back the money she had owed and that she would account on a common footing, and we are pleased the judge recognised this in his judgement.”

He added: “The case goes to show it is not always in the best interest of all parties to appoint family members as personal representatives, which is actually quite a specialist job. In some scenarios they can have the best intentions but make mistakes due to a lack of experience, and in others the personal representative can be found to be wilfully negligent as was the situation here.”

“We urge anyone in a similar position to take expert advice as soon as possible as there are strict rules and deadlines which need to be adhered to as a personal representative which can be complicated for those who don’t have experience in probate.”