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Intermeddling with an estate

by | May 6, 2022 | Wills & Estates

To “intermeddle” (or interfere) in the administration of a deceased estate can include dealing with assets of a deceased person before a Grant of Probate has been received.  Should anyone, other than an executor appointed in a Will transfers, disposes of or otherwise deals with any assets of a deceased prior to a Grant of Probate, then they are said to be an executor de son tort and have intermeddled with the estate.

What is an executor de son tort?

The French term “executor de son tort” essentially translates to “executor of his own wrong”.  Under succession law, if you are an executor de son tort, you are someone who has wrongfully intermeddled with the administration of a deceased estate or, someone who assumes the position of executor without legal permission to do so.

What does intermeddling involve?

There are several situations where someone may be intermeddling or acting as an executor de son tort and include:

  • where someone could have the legal authority to administer, but chooses to assume the responsibility without obtaining a Grant of Representation;
  • challenging or taking over the role of executor without authority – this can happen when an executor is a loved one who is too overwhelmed to deal with the estate and another family member steps in to assist;
  • distribution of assets or taking possession of estate assets; and
  • paying debts or liabilities of the estate.
What are the consequences of acting without authority?

Despite not having legal authority to act as an executor or legal personal representative, an executor de son tort will be liable for damage and loss as though they were a duly appointed representative.  This could result in an executor de son tor being used by the rightful representative or even a beneficiary of the estate should loss or damage have been caused by the intermeddling.  The liability is limited however to only the property they have meddled with.

Even though an executor de son tort will be treated as though they were duly appointed when dealing with liability, they do not have the same entitlements of an appointed executor in that they are personally responsible for any expenses they incur and cannot claim executor commission or compensation for their work.

How can Nevett Ford help?

We understand that for a lot of people, the administration and management of a deceased estate is unfamiliar territory and can be overwhelming.  If you are an executor needing to deal with a deceased estate or should you believe you have the authority to act on behalf of the estate, we would recommend contacting our Wills and Estates Team on 03 9614 7111 or by email to melbourne@nevettford.com.au.