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The lost legacy

Harriet was delighted to be given a valuable painting, by a well-known 18th century artist, under her Aunt Betty's Will. The painting's market value was GBP18,000 at the date of Aunt Betty's death.

Unfortunately, the painting was stolen shortly after the valuation was carried out, along with various other chattels. The thief has been traced but has already sold the painting to a third party. Harriet is expecting the executors to do all they can to recover the painting.

As a general rule, executors/personal representatives are not obliged to take anything other than normal and routine steps to collect in assets and deliver them to specific legatees. The circumstances of Harriet's case are not dissimilar to those in Re Clough v Taylor where the principles concerning the costs in relation to specific legacies were set out in detail. Specific legatees must generally bear the costs of:

  • Packing, transport and insurance
  • Care, preservation and upkeep and
  • Foreign duties


In Re Clough, Mr Justice Lloyd noted that a specific legatee has the benefits of the profit from any income yielding specific legacy from the date of death. It follows that a specific legatee must also bear the burden and costs that may be incurred in relation to the legacy. Mr Justice Lloyd then explained:

'I do not suggest that it was not a proper course of the executor to investigate the position as regards the [missing] chattel, but, having got to the present position, I think it right for the executor to draw a line and not to take further steps other than to assent [the chattel], and, if called for, to execute an assignment of the cause of action.'

As a consequence, the specific legatee would bear the litigation costs and the risk of failure, rather than the residuary estate. It was not accepted that wording in Section 25(a) of the Administration of Estates Act, imposing a duty on personal representatives to '… collect and get in the real and personal estate of the deceased and administer it according to law' overruled the decision in Re Scott below or restated the duties of personal representatives . It did not mean that a personal representative's duty is to get in assets specifically bequeathed and not needed for the purposes of the administration.

What is the position if the specifically gifted assets are situated abroad? In Re Scott, socialite Victoria Sackville-West was left GBP150,000 and the contents of a house in Paris, by her friend and confidante, Sir John Murray Scott. The legacy included a gift of valuable tapestries on which French law imposed duties (and penalties for late payment). The terms of the Will gave the tapestries 'free of legacy duty', but this was held to mean only English duty.

The Court of Appeal in Re Scott ruled that the first duty of an executor is to decide whether or not to assent an asset. An executor could not be criticised by residuary legatees for incurring 'moderate and reasonable expenses' of packing up a picture or valuable chattel in England and sending it to the legatee. Strictly, though these are costs payable by the legatee, unless the will directs otherwise. There is, though, no duty to bring a chattel from foreign parts or to incur foreign duties.

In Re Fitzpatrick, there were bequests by a deceased who had lived in Monte Carlo and had made specific gifts of chattels there, with residue passing to another person. The executor in that case travelled to Monte Carlo to take possession of the items and arrange for them to be shipped back to England, incurring costs of £1,000. It was accepted that an executor may need to take possession of an asset situated abroad, if needed for the estate to pay debts and expenses, otherwise Harman J held that the duty of an executor is to do no more than simply assent the asset to the legatee and leave it to the legatee to retrieve the asset.

This article  first appeared in the STEP Journal in October 2013.

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