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Executor De Son Tort

A rightful executor is afforded legal authority to administer a deceased person’s estate first through appointment in a will, and then through the issuance of a grant of probate. The Supreme Court in the state or territory will issue a grant of probate to the executor named in the will, thereby “proving” the will and approving the appointment of the executor as personal representative. As an authorised executor, this individual has some protection from personal liability during the administration of the estate. However, someone who is named as executor of a small estate may choose to proceed with the administration of an unproved will in order to try and avoid the delays and expenses of obtaining a grant of probate. In that event, the person would be called an executor de son tort: a person who acts as the personal representative of a deceased without lawful authority. This article defines the meaning of this phrase and explains the complications that may arise from “intermeddling” in a deceased estate without legal authority.

What Is An Executor De Son Tort?

From the French, the phrase literally translates as “executor of his own wrong”. Succession law defines an executor de son tort as someone who wrongfully interferes with the deceased estate administration or assumes the office of executor without legal permission. It is most often someone who could obtain legal authority to act as executor or administrator, but who chooses to assume responsibility for administering the deceased estate without resorting to the expense and trouble of obtaining a grant of probate.

A person may also be an executor de son tort if they challenge the actions of the rightful executor or commandeer the role without authority. Sometimes a well-meaning person will become an executor de son tort in the course of helping an overwhelmed or grieving executor. If someone unlawfully collects the assets of the deceased estate, they are acting without authority in the place of the true executor. A family member might act in this way without giving any thought to the legal implications. For example, a grandchild of the deceased may believe that she and her cousins are set to inherit their grandfather’s collection of paintings. The grandchild, who is not the executor of the estate, collects the paintings and distributes them amongst the grandchildren. This act makes them an executor de son tort and opens the grandchild up to liability in case the paintings were otherwise bequeathed in the will or need to be sold in order to pay estate debts.

Technically, if someone acts on the terms of a forged will, this would also be an example of someone acting as an executor de son tort, because there is no genuine authority for the person’s appointment as executor. Other examples where a person may be unaware that they are at risk of acting without authority include where someone who is not the executor or administrator of an estate:

  • Contributes to decisions about the administration of the estate;
  • Takes responsibility for the management of estate property;
  • Takes possession of estate chattels;
  • Pays debts or liabilities of the estate or releases a debt due to the estate;
  • Withholds information from beneficiaries about their entitlements; or
  • Acts in any way that involves receiving, obtaining or holding a part of the estate.

Liability And Privileges

Despite lacking formal authority, an executor de son tort is held to the same duty of care as an appointed executor. For instance, in Queensland, the Succession Act 1981 holds that a person who acts without authority as executor is held as liable as a duly appointed representative. They assume the obligations of a rightful executor but they are not entitled to the benefits or privileges of an executor. The executor de son tort is personally responsible for any expenses they incur and liable if they cause disadvantage to a beneficiary during the administration of the estate. Because they are not legally empowered, they cannot defend the estate against challenge or contest, and cannot file a lawsuit on behalf of the estate. They also have no legal right to compensation for their work.

In some jurisdictions, a person can perform the duties of an executor without proper authority as long as they act in the best interests of the estate. In the event that the rightful executors approve the actions of an executor de son tort, they can authorise their decisions (as long as they are in accordance with the testator’s will and state and federal law). The court will also consider the views and rights of the beneficiaries of the will in evaluating the actions of the executor de son tort. If the person is causing disruption to the administration of the estate, a rightful executor or interested party can file a lawsuit with the relevant Supreme Court or request an injunction order to prevent the person from acting without authority.

Sometimes a dispute over the actions of an executor de son tort can escalate to litigation. If you are having these

issues, it is in your best interests to contact the contested wills team at Armstrong Legal. Our solicitors can give advice on the particular circumstances of your case, and represent you during negotiations with an executor de son tort, or during court litigation. Alternatively, if you find that you have unlawfully assumed the duties of an executor, call 1300 038 223 today to talk over your legal liability.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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