Tue | Dec 12, 2017

Laws of Eve | More on 'dead lef'

Published:Monday | October 2, 2017 | 12:00 AM

From last week's article, we know that strangers (and this includes beneficiaries) have no business meddling in the estate of a deceased person. It is for the representative of an estate, whether she is an executor or an administrator, to carry out her functions and ensure that estates are properly administered.

When a personal representatives fails to carry out her duties, beneficiaries often become frustrated and want to take matters into their own hands. Some examples of these problems are:

- Failing to take steps to administer the estate.

- Failing to keep proper estate accounts.

- Converting estate property for their own use.

- Failing to distribute the estate.

If any such issue arise, proceedings may be commenced in court to demand that the personal representative render a just and true account of her dealings with the estate or to remove her.

In an extreme case where steps are taken to remove a personal representative, the test applied by the court to determine whether that action is justified is a very stringent one. The fact is that where, for example, the personal representative is an executor, that person was chosen by the testator to administer the estate, and every effort must be made to honour the wishes of the testator.

Where there is justification for removing a personal representative, it is important to ensure that the correct person is making the application. In other words, the applicant must be someone who stands to benefit from the estate.

The cases of Re Leigh's Will Trusts [1970] Ch 277 and Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694, were applied in the Jamaican case of Christopher v Fletcher [2012] JMCA Civ 54. In the latter case, the court held that, "The appellant, not being a legatee[1] in the estate, was not entitled to have brought an action in respect of any matter touching the estate. As a consequence, he, not being qualified to share beneficially in the estate, would not have been endowed with the right to commence proceedings for the removal of the executor. It is without doubt that his claim must fail."

Removing a problem personal representative is just one step in the right direction when there is a legitimate complaint about the administration of an estate. When she is removed, there will be a vacancy that must be filled if the administration of the estate is to be completed. Someone must be appointed by the court in place of that representative.

Although the functions are similar, the title of the person who replaces the personal representative will differ according to the title the personal representative held. Because an executor can only be appointed under a will, the person who replaces that executor will not be an executor. The new person will be an administrator. Where, however, the person being replaced was an administrator of the estate, the new person will also be an administrator.

Ultimately, personal representatives must be held accountable for the work they undertake in relation to an estate. After all, they are trustees. Similarly, however, beneficiaries must be vigilant and follow up with personal representatives so that they can ask appropriate questions and request information to satisfy themselves that an estate is being properly administered.

[1] person who stands to receive a legacy

- 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.