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Executors versus beneficiaries – what are your rights?

Recently I’ve been contacted by a growing amount of people who are worried about the effectiveness and in some cases ulterior motives of a representative of an estate.

An executor or trustee of a deceased estate has a duty to the beneficiaries to protect the estate’s assets and ultimately, their inheritance.

If a representative breaches their duties, and as a result of their breach, causes a loss to the beneficiaries of the estate, this is called “devastavit”. Devastavit is a Latin term, and it means “he has laid waste”.

What is devastavit?

Devastavit is essentially mismanagement and waste by an executor or trustee of a deceased estate, which as a result, causes loss to the beneficiaries.

Some examples of an executor committing an act of devastavit include:

  • the carrying on of a business without authority;
  • failing to pursue debtors to the point where the debt becomes irrecoverable;
  • misuse of property coming into the executors hands;
  • the payment of certain creditors with a lower priority over other creditors with a higher priority; or
  • fleeing with estate funds or assets.

The result of an act of devastavit must cause the beneficiaries a loss. The usual outcome for the beneficiaries is that they may seek damages.

A recent case where an executor was found liable for devastavit

In the case of Bird v Bird [2013] NSWCA 262, a claim of devastavit was won on appeal. The applicant was able to prove that the executors of the deceased’s estate did not fulfil their duties and obligations. The executors failed to investigate all the transactions of the estate and as a result did not identify wrongful actions of another party. This resulted in a substantial loss to beneficiaries of the estate.

If you are a beneficiary of an estate, and you are concerned about the estate being mismanaged by the executor, please do not hesitate to contact me.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

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