The question posed by this paper takes its inspiration from the opening phrase of the so called “nunnery scene” of William Shakespeare’s play, Hamlet. In this scene, Hamlet is contemplating death and suicide, bemoaning the pain and unfairness of life, while acknowledging that the alternative might be worse; Hamlet’s infamous soliloquy begins with the phrase: To be, or not to be, that is the question.
This paper will not bemoan the pain and unfairness of life, even though that may be reasonable given the topic at hand. Rather, the question posed by this paper provides a pivot to perhaps one of the most important questions that one should ask oneself before becoming involved in the administration of an estate: to intermeddle, or not to intermeddle? Of course, to answer that question, one must first understand what intermeddling is, what the law has to say about intermeddling and the circumstances in which intermeddling is likely to cause a person to bemoan their acts.
What is intermeddling?
To intermeddle means to interfere in something that is not one’s concern. It is a word that is apt to describe the type of conduct that this area of law is concerned with.
“Intermeddling”, in the context of an estate, concerns a situation where a person deals with the assets of a deceased person prior to obtaining a grant of probate. If anyone, including the prospective executor, transfers, disposes of or otherwise deals with the deceased’s assets prior to the grant of probate then they are said to have “intermeddled” and they will be personally responsible for any expenses incurred or any losses suffered.
A person acting in this way (i.e. dealing with a deceased’s assets prior to grant of probate) is acting as an executor de son tort; that is another way of describing a person who has no authority as trustee but nevertheless meddles with trust property or takes it upon himself or herself to carry out acts which are characteristic of the proper trustee. In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, an executor de son tort is defined as:
A person not lawfully appointed executor or administrator and without title to a grant may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship. Such an intermeddler is called a tort executor or an executor de son tort (ie of his own wrong).
S. 54 of the Succession Act 1981 (Qld) recognizes the acts of persons acting as an executor de son tort as follows:
Protection of persons acting informally
(1) Where any person, not being a person to whom a grant is made, obtains, receives or holds the estate or any part of the estate of a deceased person otherwise than for full and valuable consideration, or effects the release of any debt or liability due to the estate of the deceased, the person shall be charged as executor in the person’s own wrong to the extent of the estate received or coming into the person’s hands, or the debt or liability released, after deducting any payment made by the person which might properly be made by a personal representative to whom a grant is made.
Although the provision is entitled “Protection of persons acting informally”, that title is apt to mislead; a person who has no authority to act as an executor but who nevertheless performs acts properly belonging to an executor is considered to be the duly appointed representative and is held liable accordingly. That person is an executor de son tort; like the common urban mantra “if you break it, you buy it”, if you intermeddle with a deceased’s assets, you are liable for any loss that your intermeddling may cause.
A practical application of what is described above was ventilated in the decision of Clay v Clay [1999] WASCA 8. While this decision was overturned on appeal to the High Court (Clay v Clay (2001) 202 CLR 410), the facts of the case are informative for the purposes of this paper.
The claim concerned the delivery up of property and moneys which, it was claimed, were wrongfully derived from the estate of a deceased. The deceased was Mr Clay, a successful businessman who had established groups of companies. He had married twice and disappeared while flying a light aeroplane in northern New South Wales. The wreckage was not discovered until several years after Mr Clay’s death. During this period of mystery concerning Mr Clay’s whereabouts, his affairs were managed by independent trustees. It was only after leave was granted to prove death that there was a grant of probate of Mr Clay’s estate in October 1972 and the executor and trustee commenced the administration of his estate.
By his will, Mr Clay appointed Mr Speed as the executor of his estate. Mr Speed was a legal practitioner and a partner of a leading law firm, though by the time that the proceedings were heard, Mr Speed was deceased. By the terms of the will, the entire estate vested in Mr Speed as executor and trustee, with a power of sale and conversion, subject to a power of postponement, to be held until it vested in Mr Clay’s children, on their attaining the age of 25 years.
On 7 March 1973, Mr Speed, as executor and trustee, executed a transfer of the family home (known as Queenslea Drive) to Mrs Clay (Mr Clay’s second wife) for consideration of $45,000. Mrs Clay paid Mr Speed that sum from her own moneys.
At trial, the appellants pursued as their primary pleaded case that, at the date of transfer of Queenslea Drive to Mrs Clay, the true market value of Queenslea Drive was in the range of $60,000-$65,000. It was their case that the sale was in breach of Mr Speed’s duty as trustee and that Mrs Clay was a party to the breach by Mr Speed as she “knew or was recklessly indifferent” to this true market value. Alternatively, it was alleged that Mrs Clay intermeddled in the administration of the estate, thereby constituting herself a trustee and executor de son tort of the estate, in which capacity it was alleged she owed fiduciary obligations to the appellants.
The factual evidence relied upon to support the allegation that Mrs Clay became a trustee de son tort of the estate was premised upon Mrs Clay’s participation in some meetings with Mr Speed, her involvement in the letting of Queenslea Drive between November 1971 and January 1973 (including her retention of the rent received), her taking and retaining of estate chattels, and her participation in what was described in the grounds of appeal as the “wilful non-disclosure to the appellants of their entitlement under the will“. Obviously, if the appellants could establish that Mrs Clay became trustee de son tort, then she would be liable to account to the beneficiaries if it was also found that she obtained title to Queenslea Drive at less than market value.
With respect to Mrs Clay’s presence at a few meetings at which the affairs of the estate were discussed, the judge at first instance concluded that there was no evidence that Mrs Clay took part in the decision making or in any way purported to act as executor or trustee of the estate. The Full Court of the Western Australian Court of Appeal found in relation to this allegation that (at [16]):
…The issue is whether Mrs Clay intermeddled with the assets of the estate in such a way as to denote an assumption of the authority, or an intention to exercise the functions, of the executor and trustee. Her mere presence at meetings, but not participating in the decision making of the meetings, can hardly be sufficient for this purpose, no matter what the subject matter being considered at the meetings…
That finding was not disturbed on appeal to the High Court.
In relation to the allegation that Mrs Clay had let the Queenslea Drive property and received rent, the judge at first instance found that Mrs Clay did so, but with the express authority of Mr Speed. In relation to this allegation, the Full Court of the Western Australian Court of Appeal found that (at [16]):
“…That finding was clearly open on the evidence. As his Honour noted, acts done with the authority of the trustee do not constitute “intermeddling”; Halsbury’s Laws of England, 4th ed, Vol 48, para595.”
This finding was not disturbed on appeal to the High Court.
As to the allegation that Mrs Clay had taken and retained chattels belonging to the estate, the judge at first instance was unsatisfied, on the evidence, that that allegation was proven. The Full Court of the Western Australian Court of Appeal agreed. Again, that finding was not disturbed on appeal to the High Court.
Finally, the trial judge was not persuaded that any failure to disclose information to the appellants as to their interest in the estate could amount to intermeddling so as to constitute Mrs Clay a trustee de son tort. In relation to this allegation, the Full Court of the Western Australian Court of Appeal found that (at [16]):
“…At the most the evidence would indicate that, by her presence when this matter was discussed, Mrs Clay was aware that Speed had not to that time informed the appellants and Jeanette Simone Clay of their residuary interests under Mr Clay’s will, and that Speed intended deferring doing so for a time. It was not the effect of the evidence that Speed did not intend to inform them. A number of considerations would provide reason why he as trustee may have thought it better to defer this for a time, including the considerable uncertainty which appears to have beset the affairs of the estate at that time, and their ages especially as their entitlement to share in the residuary estate arose on their attaining 25 years of age. Insofar as the appellants contend that Mrs Clay participated in this decision of Speed that is against a specific finding of the learned trial Judge that she did not participate in decision making. Nor can it be said that the evidence demonstrated any “wilful” non-disclosure whether on the part of Speed or Mrs Clay…”
Again, that finding was not disturbed on appeal to the High Court.
It was for these reasons that the Full Court of the Western Australian Court of Appeal did not disturb the finding of the trial judge that Mrs Clay was not a trustee de son tort of the estate.
What type of acts may constitute intermeddling and when can proceedings against a person who has intermeddled be commenced?
What the Clay decision describes is, in a broad sense, the types of acts which could cause a person to at least be accused of intermeddling. As the above has discussed, it is at least arguable that a person could become a trustee de son tort if they:
(a) participate in some active, decision making type way, in meetings concerning the administration of an estate;
(b) take responsibility for the care of on-going management of estate property. For example, it seems reasonable to conclude that had Mrs Clay let and received the rent derived from the Queenslea Drive property without Mr Speed’s express consent, then it may well have been found that she intermeddled in the estate of her late husband;
(c) the possession or retention of chattels owned by an estate. Plainly, had the evidence established that Mrs Clay took possession of chattels belonging to the estate and treated those chattels as her own, then that may well have created a situation where Mrs Clay acted as a trustee de son tort and she would therefore be liable to return or compensate the estate for the value of those chattels; or
(d) wilfully withhold information from beneficiaries concerning their entitlements from an estate. It is, however, difficult to justify the soundness of this argument unless it could be proven that Mrs Clay in fact acted wilfully. In any case, for a claim to be available, the act would need to have caused the estate to suffer some form of loss.
There are countless examples of other acts which could amount to intermeddling. Helpfully, in our view, s. 55 of the Succession Act contemplates that (in addition to that described above):
(a) any act which includes obtaining, receiving or holding an estate (or any part of an estate); or
(b) effecting the release of any debt or liability due to an estate,
will amount to intermeddling and an act sufficient to establish that a person has acted as a trustee de son tort.
However, particular attention must be paid to the act which is alleged to have constituted intermeddling. In Public Trustee v CBA [2018] SASC 25, it was argued that because the Bank had paid money belonging to the deceased’s estate to an intermeddler rather than the Public Trustee as the true executor, that the Bank had intermeddled with the assets of the estate and thereby constituting itself as an executor de son tort. Bampton J rejected this argument and found (at [134]) that:
…The Banks were responsive to requests to pay the monies to a person purporting to be the lawful executor and they, having made an assessment of the requests, paid Michael without requiring production of a grant of probate. In order to be found to have intermeddled the Banks would have to have done more than respond to a request from a purported executor. For example, they would have arguably intermeddled if they paid a credit card debt owed to them by Mary from the monies they owed Mary before they paid Michael. If they had paid a third of the monies from the accounts to each of Michael, Philomena, and Francis rather than paying just Michael, that arguably would constitute them as executors de son tort.
“Mary” was the deceased. “Michael” was the true intermeddler. “Philomena” and “Francis” were Mary’s children. It is noteworthy that Bampton J distinguished that a (hypothetical) act by the Bank which involved some type dealing with the estate property without instruction from any other person would amount to intermeddling. Bampton J identified that intermeddling may be established if the Bank had simply taken upon itself to release the estate’s funds to each of the deceased’s children and the intermeddler without instruction to do so.
Another interesting aspect of this area is when acts of intermeddling have occurred such that a Court has jurisdiction to hear the claim being made. It is plain that the general law countenances that proceedings may be instituted against an executor prior to a grant of administration or probate in circumstances where the executor has intermeddled (s. 55 of the Succession Act also envisages this; the section captures executors appointed by a will who do not take out a grant and act informally).
In Re Lovett (1876) 3 Ch D 198, the plaintiff was a creditor of the deceased and claimed against the executors (who had not proved the Will) administration of the estate, payment of his debt and an injunction restraining the executors from parting with the portion of the estate in their hands. It was held that an action could be instituted against the executors. Malins VC stated that:
The question, then, is, whether this suit can be maintained, first, against the Defendants, who are the executors … As to the first point, it is said that the executors have not proved the will, and that a suit cannot be maintained against them on that ground. If that were the law, then it would be permitting persons to take advantage of their own wrong. A man might get possession of the assets of a testator in his character of executor, and might waste them, and be guilty of any misapplication of the funds, and yet he might not be capable of being sued because he had not proved the will … you may maintain a suit against an executor when he has received part of the assets. The true criterion of the executor’s position is whether he is appointed executor, and whether he has meddled with the estate. If he has, then he can be sued without more. It is distinctly alleged that these Defendants, the executors, have interfered with the estate, and have received a portion of the assets, and consequently they are properly made parties to the suit, although they have not proved the will.
It is peculiar then that in the decision of O’Brien v Hall [2015] VSC 52, Derham AsJ dismissed the plaintiff’s Originating Motion on the basis that the jurisdiction of the Court had not been enlivened, despite evidence of intermeddling.
The plaintiff was the daughter of the deceased. By her Originating Motion, the plaintiff applied under Part IV of the Administration and Probate Act 1958 (Vic) for an order making provision for her maintenance and support on the basis that the deceased had responsibility to make provision for her, and his Will failed to make any such provision.
The defendant was the deceased’s wife, the executor of the deceased’s estate and the sole beneficiary under his will. The will had been proved in the United Kingdom, but not in Victoria. This fact had particular relevance because, under Part IV of the Administration and Probate Act 1958 (Vic), proof was found to be an essential element of the cause of action under Part IV of the Act. Part IV of the Act relevantly provides that (s. 91):
Court may make family provision order
(1) Despite anything to the contrary in this Act, on an application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.
Derham AsJ was of the view that it was implicit within this section, when construed in the context of Part IV of the Act as a whole, that there must be a grant of representation for there to be jurisdiction in the Court to entertain an application for family provision. The plaintiff, however, argued that the general law provides that proceedings may be instituted against an executor prior to a grant of administration or probate in circumstances where the executor has intermeddled. The plaintiff argued that the defendant had received the proceeds of the estate’s only valuable asset and had, thereby, intermeddled. Therefore, it was argued that the defendant was amenable to suit even though a grant of probate or administration had yet to be obtained in Victoria. The plaintiff’s Counsel placed particular reliance upon Re Lovett, and that part of the judgment extracted at paragraph 27 above.
While Derham AsJ considered Re Lovett, his Honour identified that Re Lovett concerned claims by the creditor against executors who had not proved the Will of the deceased but had intermeddled; critically, the claim was one for an administration of the deceased estate in Court. In O’Brien v Hall, however, no such claim was made (although it was, on the face of the evidence, available to the plaintiff). The only claim that was made was one under Part IV of the Administration and Probate Act 1958 (Vic). Derham AsJ specifically noted that:
[96] …The plaintiff’s Counsel, Dr Hardingham QC, who appeared with Mr McKenzie, did not seek to amend the initiating process so as to raise that, or any other, claim against the defendant and indicated he did not intend to do so.
In other words, Derham AsJ was inviting Counsel for the plaintiff to amend the Originating Motion to include a claim for administration of the deceased’s estate, but that invitation was not taken. Had it been, and administration of the deceased’s estate in Victoria been ordered, then the jurisdiction for the family provision claim would have crystalized. As Derham AsJ described:
[110] Having regard to the plaintiff’s stated intention of commencing proceedings to compel the defendant to obtain a grant of representation if she fails to take that step herself, it is appropriate to dismiss the proceeding and leave the plaintiff to the pursuit of her rights to compel the defendant to obtain a grant of representation in Victoria, if she can, and then to make application under Pt IV within the time limits prescribed by s 99 of the Act.
The situation in Queensland, however, is quite different. Part 4 of the Succession Act concerns family provision and s. 41(8) provides that:
(8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.
(emphasis added)
This provision represents a change in the law. Under the pre-1982 law, an application was required to be made within six months after the date of the grant of probate or letters of administration. Furthermore, the law in Queensland was that no application could be made until a grant had been obtained.1 However, given that the Succession Act countenances as proper the informal administration of estates (see paragraph 5 above) and provides a favourable environment for the speedy and informal administration of small estates, the limitation period for the making of family provision applications is set at nine months after the death of the deceased. It is not necessary to show that a grant has been obtained and the period is not extended by reason of a failure to obtain a grant. Accordingly, a family provision application in Queensland could, in theory, be brought against a person who is acting as a trustee de son tort of the estate, notwithstanding that a grant has not been made.
Conclusion
We have described above what intermeddling is, how the Succession Act recognizes intermeddling, what types of acts may constitute intermeddling and a specific jurisdictional issue that can arise in States other than Queensland where intermeddling and a lack of probate precedes an application for family provision. Ultimately, the law discussed above seeks to ensure that a suit can be maintained against persons who have intermeddled in the estate of a deceased.
It was once argued that if a will had not been proven, then a suit could not be maintained against any person who had intermeddled. Unsurprisingly, that approach is fundamentally flawed; if it were the law, then it would permit a person to take advantage of their own wrong by taking possession of estate assets, wasting them, becoming indebted to the estate, but relieved of any liability because probate was not proved at the time they took possession of the assets. If this were the state of the law, it would be liable to create inequities and would be, without question, morally repugnant.
The true criterion is whether the person has or has not intermeddled in the estate. In Queensland, if he or she has, then he or she can be sued without more.
In answer to the question, to intermeddle, or not to intermeddle, the answer is: do so at your own risk of being sued if you cause loss to the estate.
Or perhaps to put it more poetically as Shakespeare himself may have done: “The fault, dear Brutus, is not in our stars, but in ourselves…” 2
Rebecca Treston QC with assistance from Brent Reading
Footnotes
- Re Jenner [1960] Qd R 349.
- Julius Caesar, Act I, Cassius to Brutus.
