1 February 2017 | Comment | Article by Roman Kubiak TEP

Duties of an executor: a new hope?

A long time ago in a courtroom not all that far, far away, a group of learned judges held that personal representatives (i.e. executors and administrators) owe what are known as fiduciary duties to act in the best interests of the estate and its beneficiaries and, where possible, to maximise the value of the estate.

The extent to which an executor must attempt to fulfil that duty has been the subject of many a classic legal battle.

Star Wars buffs, film addicts and those old enough to remember, who have been to see the latest addition to the Star Wars saga, Rogue One, will not have failed to notice a cameo by the late, great Peter Cushing aka Grand Moff Tarkin.

Peter Cushing’s appearance was made possible through the incredible talents of the visual effects team involved.

However, many have commented that it is rather unsettling and, some say, disrespectful.

Of course, with the advances in technology, the dead have been “resurrected” on numerous occasions, most notably when Tupac Shakur, shot dead in 1996, joined Dr Dre and Snoop Dogg in holographic form at the Coachella festival in 2012.

It has been reported that Peter Cushing’s estate consented to his ‘appearance’ in Rogue One and there is a suitable acknowledgement to the estate in the end credits.

Whilst it is unclear whether or not Peter Cushing’s estate received any royalties from this appearance, it does raise curious questions about the duty of executors to maximise the value of the estate on the one hand (the fiduciary duty), as against their desire, on the other hand, to respect the deceased, their family and loved ones.

To the best of my knowledge, no such case has ever come before the courts. Indeed, if all beneficiaries agreed that they would prefer not to ‘resurrect’ the dead and benefit from potential royalties then, provided all were of age and sound mind, this would protect the executors.

However, where, for instance, two groups of beneficiaries are at odds about what action to take, and the extent to which it is in the best interests of the estate, or where any beneficiary is a minor or lacks capacity, executors would be well-advised to seek directions from the court to avoid personal liability for any deemed losses to the estate.

Author bio

Roman Kubiak TEP

Partner

Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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