Executor/Residuary beneficiary drained bank account

I have an estate where the deceased’s son is the Executor and residuary beneficiary of the estate. When his father died, in the period between him dying and his son instructing us to administer the estate he drained one of his father’s accounts of funds, presumably using his bank card.

This only came to light when I took over the file and noted a discrepancy between the declared date of death value of the account and the funds received.

In most cases this wouldn’t be an issue, however there are two legacies of £1,000 that need to be paid and after repaying the estate liabilities and our professional fees (which were very low) there is not enough money to pay the legacies, due to the son spending the money. I have discussed this with him and he simply doesn’t care.

I am not sure how to move forward from this, do I inform the legacy beneficiaries so that they can pursue the Executor themselves or am I not able to do this due to client confidentiality? I have sent him letters about it but he simply ignores them.

Any help would be gratefully received.

Gemma Van Duke
Bishopsgate Law

I think in these cases, it is important to keep clear the distinction between acting as legal adviser on an executor’s instructions, and acting as executor. Having covered yourself by advising him in writing of the correct course of action, it rests on his shoulders to carry this out. Much as it may be upsetting on a personal level to see someone get away with this kind of behaviour, and you may want to push him to do the right thing, ultimately I don’t think it’s open to you to police his conduct or to inform the other beneficiaries without his consent. But I’d be interested to hear what others think.

Ben Leach
Molesworths Bright Clegg