Imagine a scenario where someone has died and before the body is even cold, individuals move into the deceased’s house, sell off furniture and other items and basically take over.
This scenario happens all too often. At least, there are others who prematurely call the lawyer’s office to ask what they should do (the answer to which is “bury your relative and get a death certificate”).
Any person who behaves in this fashion without having been appointed by the will, or other testamentary document, or without having obtained letters of probate/administration from the Supreme Court, is designated as an “executor de son tort” (translated as an executor in his own wrong).
Section 15 of the Succession Act, Cap. 249 essentially codifies the common law and provides that “If any person to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any part of the estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as an executor in his own wrong to the extent of the estate received or coming into his own hands, or the debt or liability released after deducting (a) any debt…due to him from the deceased person…; and (b) any payment made by him which might properly be made by a personal representative.”
The guilt of the “executor de son tort” revolves around acts which, to the detriment of creditors of the estate, estate property is obtained or held or other debts and liabilities released. Such acts which give rise to the implication that a person is an “executor de son tort” include but are not limited to the demand for payment of a debt due to the deceased, payment of debts owed by the deceased, the collection of rent, carrying on of a business operated by the deceased and disposing of property owned by the deceased.
The liability of the “executor de son tort” is important, since any acts which would also lawfully have been carried out by a true executor, legally bind the estate even though there was no lawful authority for such acts.
Pursuant to section 16 of the Act, where the executor has converted property (whether real or personal) to his own use or has caused damage (waste) to any such property, his liability continues after his death and his estate is subject to appropriation to recoup any loss incurred as a result.
There is a line drawn as to what constitutes intermeddling and persons are not penalized for acts of charity and/or necessity. For example, the organising of the deceased’s funeral and appropriation of funds therefor are considered as acts of necessity and do not amount to intermeddling.
In any event, funeral expenses are prioritized for payment as a debt of the estate as per the First Schedule to the Act. Similarly, safeguarding or preserving the goods of the deceased and providing for livestock and doctor’s fees, do not attract any attendant liability.
An “executor de son tort” may be sued in the civil courts by the rightful personal representative of the estate, any creditor or beneficiary. In relation to an action brought by the lawful personal representative, it is open to the “executor de son tort” to set up as a defence to any claim for damages all payments made by him in the course of administering the estate
For example, where an action is brought by a creditor, it is a defence to such an action that the estate has been fully administered or that the assets have all been handed over to the lawful personal representative (and not any other individual).
(Alicia Archer is an attorney-at-law in private practice.)