Thu | Dec 14, 2017

Laws of Eve | Strangers must not intermeddle in ‘dead lef’

Published:Monday | September 25, 2017 | 12:00 AM

During the many years I have published these articles, I have come to realise that there is never too much information in respect of some topics. One such topic is the administration of the estates of deceased persons. More specifically, from the perspective of the executors and beneficiaries of estates, the role and duties of executors are of great importance.

The case of Jacas v Jacas and Another [2014] JMSC CIV 190 involved members of the family of a deceased person. The claimant is one of the administrators of the deceased's estate while the defendants are his widow and son against whom a claim was brought to provide an account for rent collected from property belonging to the estate and to cease intermeddling in the estate. An injunction was sought and granted to prevent the defendants from continuing to collect rent in respect of the property in question until the case is tried. The question of whether the defendants had actually intermeddled in the estate was left to be determined at trial.

 

Important principles

 

In the course of her judgment, the learned judge highlighted some important principles which are helpful to guide executors, in particular, and all other persons, in general, in relation to the appropriate steps that they are permitted to take with respect to a deceased person's estate[1]:

An executor derives his title from the deceased person's will and he may "pay or release debts as well as get in and receive the testator's estate even before probate is granted".

In reliance on the case of Re Stewart; Smith and another v Price and others 5 ITELR 622, the learned judge accepted that' . . . the executor has certain specific statutory and common law duties and powers, namely to:

- Bury the deceased;

- Make an inventory of assets;

- Pay all duties, testamentary expenses and debts;

- Pay legacies;

- Distribute the residue to the persons entitled; and

- Keep accounts."

Further, with reference to the judgment in Re Stewart, the judge also accepted that, many of those duties are ". . . facets of the one primary duty of an executor, to propound and maintain the will by which he has been appointed."

The executor holds the assets of the estate for the sole purpose of carrying out his duties and functions and is therefore in a fiduciary position in relation to those assets. He may be be held liable if he is negligent or reckless in his management of the estate.

He must "deal with those assets with the utmost probity".

A person who intermeddles in an estate may be sued by the rightful representative, beneficiaries and even creditors. The slightest acts of interference are sufficient to amount to intermeddling. No one is entitled to usurp the functions of an executor by assuming authority that only an executor can exercise. (One such example is the collection of rent in respect of premises owned by the estate of the deceased person).

The fact is that some executors do not carry out their functions promptly, or at all. For beneficiaries who have that concern, the remedy is not to simply step in and try to administer the estate. There is a legal process to be followed, which I will explore in next week's article.

 

[1] I have paraphrased the words used by the learned judge, where necessary.

Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.