Armitage v Nurse [2024] NSWSC 648 | Case summary

General Law Principles Governing Renunciation

The general law governing renunciation of probate is informed by the purpose of the law and the means available to a court to serve that purpose. It is closely aligned with the law's concern to address problems arising from the conduct of a person who, without a grant of probate or administration, "intermeddles" with estate property, and with the concepts of an executor, executor de son tort; probate, devastavit, fiduciary obligations and the due administration of a deceased estate.
These concepts, together with that of "intermeddling" itself, are products of historical developments in which (characteristically of probate law and practice) modern distinctions between substantive and adjectival law are not everywhere to be found and the different perspectives of common law, equity and ecclesiastical courts in the Anglo-Australian tradition have made pragmatic contributions.
Although learned judges (such as Needham J in Mulray v Ogilvie (1987) 9 NSWLR 1) have sought principled consistency in precedential reasoning, based on a collation of particular decisions, any quest of that nature, in search of universal rules, courts disappointment. Attention must, rather, focus upon the overarching purpose of an exercise of probate jurisdiction, pragmatically applied.
I draw comfort from the following observations of Needham J in Mulray v Ogilvie: "The questions of what acts will make a person an executor de son tort and of what acts make it impossible for a person named as executor to renounce probate cannot be said to have instant and convincing answers. There are many decisions on each of these points, most of them comparatively ancient, but it is not possible, I think, to reconcile them. [9 NSWLR 3A-B]. … It is not easy, from [the decisions reviewed by his Honour], to extract the principle by which the present case might be determined. [9 NSWLR 5B]. … I conclude by saying that it appears to me that the trend of the more modern cases is to take a more lenient view of acts of nominated executors. This was the view, also, of Nicholas CJ in Equity in In the Will of Colless (1941) 41 SR (NSW) 133; 58 WN 11; [9 NSWLR 6A]"
At a high level of abstraction the purpose of the law is to facilitate the orderly administration of a deceased estate, including protection of the interests of beneficiaries and creditors as persons who have an interest in due administration of the estate and ensuring that a person who has dealt with estate assets, or otherwise interfered with administration of an estate, without due authority can be held accountable to the estate.
By requiring a person who seeks to renounce a right to apply for a grant of probate to declare that he or she has not intermeddled in the estate, or to submit to orders of the Court addressing problems arising from intermeddling, the Court has an opportunity to facilitate the orderly administration of an estate.
Whether a person has intermeddled in an estate is a fact-sensitive question. A person may be found to have intermeddled if he or she has taken steps to administer the estate indicative of acceptance of the office of an executor, or taken possession or control of estate assets (or otherwise dealt with them) so as to render himself or herself accountable to beneficiaries or creditors of the estate. Conduct limited to steps taken to preserve estate assets may be classified as not constituting intermeddling: Howling v Kristofferson (Supreme Court of NSW, Cohen J, 14 October 1992, unreported) BC 9201556 at [11]-[16].
The concept of an executor de son tort is explained in Hutley, Woodman & Wood, Succession: Commentary and Materials (Lawbook Co, Sydney, 4th ed, 1990) at page 268 in the following terms (with editorial adaption and omitting case references): "A person can by his own acts without proper authority clothe himself with some of the powers, privileges and liabilities of a legal personal representative. A person who is neither executor nor administrator and who intermeddles with the goods of the deceased or does any of the acts characteristic of the office of executor, becomes an executor de son tort. A single act is generally not sufficient but collecting the deceased's debts or selling his property are sufficient. Such a person can be sued in his capacity as executor de son tort by a beneficiary to enforce beneficiaries' rights … or by a creditor; if sued by a creditor he can plead plene administravit [that is, he has fully administered the estate and has no assets to satisfy the creditor's claims] …"
The rationale and historical derivation of the concept of an executor de son tort is explained in GE Dal Pont, Law of Succession (Lexis Nexis, Australia, 3rd ed, 2021) at [10.15], (with editorial adaption and omitting footnotes): "The law recognises that a person may become an executor de son tort; that is, an executor 'of his own wrong'. This occurs when a person, including an executor nominated under the will, intermeddles with the deceased's estate at a time preceding the grant of probate. By 'intermeddling' is meant, it is said, 'tak[ing] upon himself the office by intrusion' and dealing with the estate 'in such a way as denotes a usurpation of the functions of an executor'. The intermeddler is not a true executor (even if he or she is nominated as executor), as he or she (at that stage) lacks title to the assets of the estate. The chief object of branding a person an executor de son tort is as a means of rendering him or her liable to account for the property with which he or she has illegitimately dealt in that capacity, which explains the observation that the doctrine 'grew up' as 'a protection to those interested' in the estate, namely creditors and beneficiaries. In particular, it developed in response to the numerosity of persons in England having the authority to grant probate, including many clerical office holders and also some town authorities, preceding the 1857 abolition of the ecclesiastical jurisdiction [in England]. In these circumstances, it has been said, 'the right to act as executor was not something easily determinable, and the doctrine was introduced to ameliorate the position of those dealing with persons acting as though they were executors' [: FC Hutley, 'The Executor De Son Tort in the Law of New South Wales' (1952) 25 ALJ 716]. This has partly translated to its modern rationale, being described in terms that 'no one should be permitted by refraining from taking out probate or administration to obtain possession of the deceased's property free from its liabilities' [: Hiralal v Hiralal [2013] NSWSC 984; 10 ASTLR 300 at [165]]. A person who intermeddles after a grant of probate to a nominated executor cannot be an executor de son tort because the appointed executor then carries the obligation to get in the assets of the estate. To allow intermeddling with those assets by a person who is not an executor is a breach of duty by the executor, against whom the estate can seek relief."
A convenient summary of the general law governing a renunciation of probate can be found in the Queensland Law Reform Commission's Report No 65 of April 2009 entitled Administration of the Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General.
As will become apparent, in this judgment I take issue with an observation in paragraph [4.28] of the Report about a limitation on the liability of an intermeddling executor (or an executor de son tort) to account for intermeddling conduct, a factor which may bear upon whether an intermeddling executor should be granted leave to renounce probate.
Chapter 4 of Volume 1 of the Report (entitled "Appointment of Personal Representatives") includes the following summary of the law, here reproduced without footnotes, in an editorially adapted form and with emphasis added: "RENUNCIATION AND THE EFFECT OF INTERMEDDLING ON AN EXECUTOR'S RIGHT TO RENOUNCE THE EXECUTORSHIP OF A WILL Introduction [4.23] A person who is named as the executor of a will may choose whether or not to accept the nomination and act as executor. If the person does not wish to act as executor, the person may 'renounce' the executorship of the will. Renunciation is 'a formal act in writing by which a person having a right to probate or administration waives and abandons that right'. [4.24] In [NSW], a person nominated as executor may lose the right to renounce by intermeddling in the estate - that is, by taking steps to administer the estate. The effect of intermeddling on an executor's right to renounce and the acts that may be held to be sufficient to preclude renunciation are considered below. The existing law … [4.25] Under the general law, an executor who has intermeddled in an estate may not ordinarily renounce the executorship of the will. This is because '[t]he act of intermeddling is taken to be an indication of an intention to accept the executorship and will constitute an acceptance of that office by the person named as executor in the will'. [4.26] An executor who has intermeddled may be compelled to accept the executorship and prove the will. If the executor refuses to do so, the Court 'can, by a harsh process of attachment or committal to prison, seek to compel the citee to take out a grant of probate of the will'. [4.27] Given the effect of intermeddling on an executor's right to renounce, the practice of the courts is 'to require the executor as part of the formal act of renunciation, to declare that he has not intermeddled in the estate of the deceased and that he will not thereafter intermeddle therein with intent to defraud creditors'. [4.28] The purpose of the rule is to protect the interests of the beneficiaries and creditors of the estate. It has been observed that: 'an executor who has administered the estate without taking probate is liable only for what he has actually received, and is not liable to account on the basis of wilful default … On the other hand, an executor who has proved the will is accountable on the basis of wilful default. [A trustee who is required to account on the basis of wilful default 'is accountable not only for money which he has in fact received but also for money he could with reasonable diligence have received']. This being so, to allow an executor who had intermeddled in the estate to renounce might well seriously affect the rights of infant beneficiaries … [4.29] However, in a proper case, the court may accept the renunciation of an executor who has intermeddled - for example, where all the beneficiaries have legal capacity, have had their legal rights fully explained to them, and desire that the grant be made to another person: [In the Will of Lyndon [1960] VR 112 at 115]. Further, the court may in special circumstances exercise its discretion to pass over an intermeddling executor and to make a grant to another person. [4.30] There is a considerable degree of inconsistency in terms of the acts that have been held to amount to intermeddling and, therefore, to prevent an executor from renouncing: … [4.36] A commentator on succession law and practice [G Weir, 'Intermeddling by an Executor and Renunciation' (1935) 9 Australian Law Journal 187 at 189] has suggested that '[a]cts of active intermeddling may be equivocal, according to the intention governing them and may be divided into two classes', with each having a different result in terms of the effect of the intermeddling on the right to renounce: (a) Acts showing an intention to assert dominion (eg taking possession with a view to managing, paying debts, realising assets), which preclude renunciation, (b) acts performed as an act of necessity or an office of kindness without any such intention (eg, caring for animals, preserving goods, arranging funeral as a friend), which do not preclude renunciation. [4.37] In his view, some acts may 'show an intention to administer (eg, advertising for claims to be sent to the person advertising and describing himself as executor) and … therefore fall within class (a) above, [but] may not be followed by any more active steps to administer'. In those cases, it has been suggested that: 'the Court may on consideration of all the circumstances and particularly the benefit of the estate decide to accept the renunciation notwithstanding the technical act of intermeddling.' [4.38] The rules discussed above apply only to a person named as executor in a will. A person who is merely entitled to letters of administration may renounce the administration of the estate even though he or she has intermeddled in the estate. Such a person is not required to declare that he or she has not intermeddled in the estate, and cannot be compelled to take out a grant."
That the purpose of the law governing renunciation of probate is to facilitate an orderly administration of a deceased estate is confirmed by authorities to the effect that PAA section 69 (which provides that, upon a renunciation of probate, "the right" of a renouncing executor "in respect of the executorship shall wholly cease") does not prevent a renunciation being retracted (withdrawn) with the leave of the Court on a proper cause shown: Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144 (Young CJ in Eq); Re Lim [2020] NSWSC 322; 20 ASTLR 158 (Hallen J).
Whether an executor is granted leave to renounce probate, or to retract a renunciation, an underlying feature of the law governing renunciation of probate is that the process is "at all times under the control of the Court", to quote the leading Australian judgment, In the Will of Lyndon [1960] VR 112 at 114 (Pape J).
To this, I would add (and it is not disputed in these proceedings, but needs to be made explicit) that a renunciation of probate (or a grant of leave to renounce probate) does not, of itself, operate as a release of a renouncing executor from any liability he or she might have arising from his or her intermeddling in an estate.
The authorities do not, in terms, suggest otherwise; but I apprehend that: 1. if (which I doubt) it is a correct statement of the current law that a renouncing executor is only ever liable for estate assets he or she has actually received and cannot ever be held liable to account on a wilful default basis, an intermeddling executor (who has performed the functions of an executor in a manner that has not involved an "actual receipt" of estate assets but who has, for example, caused a loss to the estate or profited from information confidential to the estate) may escape a liability to which he or she might otherwise be exposed by a renunciation of probate with the leave of the Court. 2. if, as ordinarily happens, an application for leave to renounce probate is not advertised, and a renunciation of probate with the leave of the Court operates (contrary to my view) as a release in favour of the renouncing executor, a beneficiary or creditor who receives no notice of the application for leave might be unfairly prejudiced unless (as I intend) the law is expressly stated in terms that neither a grant of leave nor a renunciation, of itself, operates as a release of the renouncing executor from any liability to which he or she might otherwise be exposed.
Subject to the terms of the order, an order granting an intermeddling executor leave to renounce probate should not be taken to operate to absolve the executor from any liability which, but for his or her renunciation of probate, he or she would otherwise have had arising from his or her conduct before renunciation.
In Re Lyndon [1960] VR 112 at 115, Pape J made the following cautious observations, with emphasis added: "… [The] Court has power to accept a renunciation by an executor who has intermeddled in the estate, and the only question for me to decide is whether in this case I should do so. In deciding this question, I think I should consider the interests not only of the beneficiaries, but also of the creditors (if any) of the estate. Where there are infant beneficiaries, I think that, as a general rule, the Court should be loath to accept such a renunciation. The law appears to be that an executor who has administered the estate without taking probate is liable only for what he has actually received, and is not liable to account on the basis of wilful default (Lowry v Fulton (1839), 9 Sim.104.Seaton, 7th ed, 1085). On the other hand, an executor who has proved the will is accountable on the basis of wilful default. This being so, to allow an executor who has intermeddled in the estate to renounce might well seriously affect the rights of infant beneficiaries, as In the Goods of Badenach (1864), 3 Sw&Tr 465; 164 ER 1355 shows. In this case I was told that all the beneficiaries were of age and were anxious for [a grant of letters of administration with the will annexed] to be made to a residuary beneficiary despite the fact that a renunciation of probate executed by the executor named in the will did not state that he had not intermeddled in the estate. I accordingly required [counsel for the applicant] to file an affidavit which would show that all the beneficiaries were of age, that their legal rights had been fully explained to them, and that with full knowledge of the consequences, they desired that the executor's renunciation should be accepted. Affidavits to this effect were duly filed, and I think that I should give effect to the wishes of the beneficiaries. … With regard to creditors, their position is somewhat different, for they may recover their debts against the estate whether it be in the hands of the executor or the administrator with the will annexed. But a creditor who is not paid may always issue a writ asking for the administration of the estate by the Court, and in such an action accounts may be ordered against the executor who has proved on the basis of wilful default. If there is any real doubt regarding the ability of the estate to discharge his debt this may be a real protection to him and he should not be deprived of it lightly. I accordingly also required [counsel for the applicant] to file an affidavit setting out the position of the estate with regard to its creditors. This was done, and I am satisfied from the affidavits filed that no creditor will be adversely affected by accepting this renunciation … The cases in which the Court will accept a renunciation without a declaration that the executor has not intermeddled are exceptional, and the general rule is that it ought not to allow an executor who has intermeddled to renounce. …"
In the context of an application by an intermeddling executor for leave to renounce probate, I am not comfortable with the binary distinction implicit in the proposition that the executor "is liable only for what he has actually received, and is not liable to account on the basis of wilful default". An intermeddling executor may have acted to the detriment of an estate without "actually receiving" estate property. This might have occurred, for example, by provision of negligent advice not involving a receipt of property by the executor.
For completeness, I note that the concept of a liability to account on the basis of wilful default generally refers to accounts being taken on the footing that the accountable party is liable not only for sums actually got in, but for all monies which, without his or her wilful neglect or default, might have been possessed or received: Osborn's Concise Law Dictionary (Sweet & Maxwell, London, 10th ed, 2005), page 8; Armitage v Nurse [1998] Ch 241 at 252C-D.
I acknowledge the force of the following observations in GE Dal Pont, Law of Succession (Lexis Nexis, Australia, 3rd ed, 2021) at [10.19] (omitting footnotes, with emphasis added): "Liability stemming from intermeddling. The liability that stems from the intermeddling is that which would accrue - to beneficiaries and creditors of the estate - had the intermeddler obtained a grant. It does not extend beyond the assets the subject of intermeddling; after all, an executor de son tort, having no obligation to get in estate assets, cannot by definition be liable in respect of assets he or she has not dealt with. No title vests in an executor de son tort merely by intermeddling. But the need to protect innocent third parties dictates that those who deal with an executor de son tort in the good faith belief that he or she is authorised, as executor, to deal with the property, can take valid title from that person. And if an executor de son tort discharges a debt owing by the deceased to a creditor, the rightful personal representative cannot later recover the payment … ."
In these observations I am uncomfortable with the proposition that "an executor de son tort, having no obligation to get in estate assets, cannot by definition be liable in respect of assets he or she has not dealt with". That proposition is based upon language that implicitly assumes that the liability of an intermeddling executor who seeks to renounce probate is limited to "assets the subject of the intermeddling" and does not extend to liability "in respect of assets he or she has not dealt with", apparently in the sense of "getting in estate assets".
The proposition, baldly stated, is commonly repeated as if an inflexible, self-evident rule of law (but, commonly, in the context of a discussion about the nature of intermeddling or whether a right to renounce probate is available to an intermeddling executor): eg, Re Orloff [2010] VSC 48; 3 ASTLR 260; Re Estate of Abat, Deceased [2020] VSC 560 at [32].
A more nuanced treatment of the topic is found in Griffin v Coe [2012] NSWSC 412 at [25] and [28] (Davies J): "[25] It should be noted that there has been criticism in cases and in commentary of the description executor de son tort being applied to an executor appointed under a will who does acts in relation to the estate prior to obtaining a grant: Sykes v Sykes (1870) LR 5 CP 113 at 117, 118 and 119; Howling v Kristofferson (unreported - Sup Ct NSW, Cohen J - 14 October 1992; BC9201556 at 11); Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (16th Ed) at 93; and see also F C Hutley, The Executor De Son Tort in the Law of New South Wales (1952) 25 ALJ 716. The basis for the criticism is that there is no wrongdoing on the part of the named executor if he undertakes certain acts prior to the grant. That is not to say that the carrying out of those acts may not be such as to deny the executor the right to renounce, but that is a different point from an assertion of liability for devastavit in respect of the whole of the Deceased's estate. … [28] Even if it is accepted that the combination of the acts referred to amounted to intermeddling on the part of Mr Matthews, it is necessary to give attention to what has been done by him as a result of those acts. He does not thereby become liable in respect of the whole of the Deceased's estate. As executor de son tort he is only liable to account for assets which he has "taken into his possession or dealt with": Ex parte the Public Trustee; Re Birch and Anor (1951) 51 SR (NSW) 345 at 351; or assets "with which he... has purported to deal: Nolan v Nolan [2004] VSCA 109 at [20]; or assets "which he has received": In re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 178; and see also Parker v Stratford-Upon-Avon Corporation [1914] 2 KB 562 at 567."
On an intermeddling executor's application for leave to renounce probate there may be an element of risk management directed to protection of an estate (and, ultimately, beneficiaries and creditors of the estate). Even if, as I accept in the current proceedings, the first plaintiff has made a bona fide endeavour to disclose the full nature and scope of his or her intermeddling the risk of an unanticipated claim cannot be excluded, particularly as the practice of the Court does not ordinarily extend to requiring an application for leave to be advertised at large. For that reason, I prefer to focus on the proposition that a grant of leave to renounce probate (or a renunciation) does not, of itself, operate as a release of a renouncing executor from any liability he or she may have arising from his or her intermeddling in an estate.
There is, moreover, or may be, artificiality in the operation of a proposition that an intermeddling executor who applies for leave to renounce probate "is liable only for what he has actually received, and is not liable to account on the basis of wilful default" in circumstances in which: 1. the Court has power to compel the executor to take out a grant of probate; or 2. as in this case, two nominated executors have jointly intermeddled and one renounces probate and the other takes a grant of probate.
It is not necessary for me, in these proceedings, to dwell on the question of "compulsion" beyond extracting the following extract from Stephen Janes, David Liebhold and Paul Studdert (eds), Wills, Probate and Administration Law in New South Wales (Lawbook Co, Sydney, 2nd ed, 2020) at [PAA.69.30]-[PAA.69.50], omitting footnotes, with editorial adaption and emphasis added: "[PAA.69.30] Loss of the right to renounce - intermeddling A person named as executor in the will and who intermeddles in the estate may be ordered to take out a grant of probate. This means that the intermeddling executor loses the right to renounce at will, and renunciation after intermeddling is not generally effective. The fundamental reason why a renunciation cannot be accepted freely after intermeddling is to protect the interests of beneficiaries and creditors. The courts had to ensure that equity could still govern an executor who had acted without a grant and tried to relieve themself [sic] of liability by renouncing. In particular, the protection given to creditors and beneficiaries by the court's power to order account on the basis of wilful default is not available against an executor who has no grant, and so an executor who has intermeddled will not be allowed to renounce unless the court is satisfied that creditors and beneficiaries will not be prejudiced. A person who has accepted the burdens or taken upon themself [sic] the administration of the estate has intermeddled in the estate so as to prevent themself [sic] from renouncing without getting the permission of the court. [PAA.69.40] Renunciation where there has been no intermeddling An executor named in the will may renounce at any time before grant but not thereafter. … [PAA.69.50] Renunciation after intermeddling A person who is appointed executor in the will and intermeddles may be ordered by the court to take out probate. [The intermeddler will not be required to take out probate unless there are assets within the jurisdiction, and in respect of those assets, the situation must be such that the court might not unreasonably assume that the executor would apply for a grant or reseal]. The court in Will of Colless (1941) 41 SR (NSW) 133 took the view that renunciation after intermeddling was impossible. The better approach is, however, that a named executor who has intermeddled may renounce only with the consent of the court - that is, the court has a discretion to accept a renunciation which does not contain a statement that the renouncer has not intermeddled. This was the approach adopted in Will of Lyndon [1960] 112 and Estate of Biggs [1966] P 118 at 123-126. A number of reasons can be advanced for preferring the approach in Lyndon to that in Colless[:] 1. The approach in Lyndon relieves the court of any pressure to distort the rules as to what amounts to intermeddling for the purposes of renunciation as opposed to becoming an executor de son tort. A rigid rule that an intermeddling executor may not renounce produces this pressure: see Will of Colless. 2. The court has an inherent power to grant an administration even if the executor named in the will has not been given notice to take probate. From this it follows that the court can accept a renunciation even where the named executor has intermeddled. 3. The preferred approach has the same basis as, and parallels, the principle that the court has a discretion to pass over the named executor. 4. The preferred approach leaves control in the hands of the court. This is important, for, while there are many cases where an executor who has intermeddled may be allowed to renounce without endangering creditors or beneficiaries, the court must exercise caution where there is a risk to interested persons. Lyndon held the reason why such a renunciation should be accepted is that, if the named executor is forced to prove, there will inevitably be an application for their discharge or removal. Further the court should exercise caution to protect persons interested in the estate. An executor who administers without grant is liable only for what has come into their hands, and is therefore not liable to account on the basis of wilful default. However, if, having intermeddled, the named executor is compelled to take out a grant of probate, accounts may be ordered on the basis of wilful default - a substantial protection to interested persons. …"
Where only one of two jointly intermeddling nominated executors takes a grant of probate a question may arise as to whether the fact of taking the grant increases his or her liability, a question raised, but not determined, by Vaughan Williams LJ in In re Stevens [1898] 1 Ch 162 at 178: "Taking the view which I do [that there was no factual foundation for a finding of devastavit], it is unnecessary to consider whether the fact that Stevens [one of two nominated executors] has now proved increases his liability; but there is a good deal of authority to show that the liability of a named executor who has not proved but has intermeddled is limited to those assets which he has received (see Read v Truelove (1762), Lowry v Fulton (1839), Williams on Executors, 9th ed, page 1736, et seq). Such an executor is not an executor de son tort; but in this respect his liability seems to be limited in the same way: Rogers v Frank (1827) 1 Y&J 409; 148 ER 730."
These observations were made on appeal from a judgment (reported as In re Stevens [1897] 1 Ch 422) in which it was held that the executor who had not proved the will, having informally accepted the office of executor, could not renounce probate and was liable (with the executor who did prove the will) to account as an executor for what he had received on behalf of the deceased's estate. In the absence of a finding of devastavit, both executors were required to account on a common (not a wilful default) basis.
On the analysis of the law, and probate practice, in Janes, Liebhold and Studdert the approach to be taken to an application for leave to renounce probate may depend upon the Court's perception of whether an intermeddling executor has omitted to do things which he or she "ought" to have done rather than factors directed specifically to due administration of an estate. As the editors notice in a footnote, an executor forced to apply for probate may inevitably be an "unsuitable person" to perform the duties of the office of an executor.
In any event, the utility of an order that a nominated executor be compelled by a direction of the Court to take probate may be doubtful in light of PAA section 69(c), which attributes the effect of a renunciation to a failure to comply with the Court's direction.
In my opinion, the Court's focus should be, and at all times remain, on what is required for the due administration of an estate. If an intermeddling executor applies for leave to renounce probate that application should be determined (with or without the imposition of terms) by reference to what is required for due administration of the deceased's estate.
Ultimately, the personal liability of an intermeddling executor to account to an estate (in essence, creditors and beneficiaries) for losses incurred, or unauthorised gains, depends upon the nature and scope of conduct of the intermeddler in his or her assumption of the role of an executor, or his or her engagement with the process of administration of an estate, rather than a putative rule that he or she "is liable only for what he or she has actually received and is not liable to account on the basis of wilful default". The gravamen of an intermeddler's liability is his or her conduct, giving rise to a liability to account for losses or unauthorised gains, not limited to an "actual receipt" of property but including, for example, negligence in administration of an estate.
Part of the problem in analysing questions about intermeddling and a renunciation of probate is that discussion proceeds by reference to discrete topics rather than by express reference to the broader question of what is required for the due administration of an estate.
Re Estate Abat, Deceased [2020] VSC 560 at [45]-[46] (McMillan J) illustrates the correct focus (although her Honour did not address the question of the intermeddling executor's liability to account to the estate in which she intermeddled), reproduced here with editorial adaptation and emphasis added: "[45] Where a court does not accept the renunciation of an executor who has intermeddled in an estate, and also forms the view that the named executor is not a proper person to administer the estate, such circumstances may be sufficient for a court to exercise its discretion to pass over the intermeddling executor and make a grant to another person.: Re Toole [1913] IR 188; Re Biggs [1966] P 188; Telfer v Telfer (No 2) [2013] NSWSC 823, [7] (Slattery J) ('Telfer'). [46] The Court has both statutory and inherent power to pass over a named executor in special circumstances and grant the right to administer an estate to another person. The statutory power is found in s 15 of the Administration and Probate Act 1958 [an equivalent of PAA section 75]. The inherent power is found in the principle that the real object of the Court is the due and proper administration of an estate and the interests of the parties beneficially entitled to the estate.: In the Goods of Loveday [1900] P 154, 156 (Jeune P); Bates v Messner (1966) 67 SR (NSW) 187, 189-91 (Asprey JA); Telfer (n 13)."
The principle identified by her Honour as informing an exercise of the Court's inherent jurisdiction was implicitly on show in her Honour's judgment in Re Burstyner [2021] VSC 531 at [28], where she held that an executor's renunciation of probate need not preclude an application for a grant of representation of an estate in another capacity, however, the discretion whether or not to make a grant in another capacity is left to the court.
The necessity for a broad overview of estate administration in the context of an application for leave to renounce probate is illustrated by the following extract from GL Certoma, The Law of Succession in New South Wales (Lawbook Co, 4th ed, 2010) at paragraph [13.20], pages 255-256 (omitting footnotes, with emphasis added), which nevertheless embraces (as do other texts) an axiomatic view of an executor de son tort's "limited" liability: "Where a named executor becomes an executor de son tort through intermeddling he or she cannot later renounce probate but may be cited to take it and even peremptorily ordered to do so … An executor de son tort is liable to the creditors and beneficiaries of the deceased in the same way as a rightful executor, as well as to the rightful personal representative, but in every case only to the extent of the assets which come to hand because unlike a rightful representative and executor de son tort is under no duty to collect the deceased's assets. Where an executor de son tort is sued by a beneficiary or a creditor he or she may plead plene administravit which is established by showing either that there has been an account to the rightful personal representative for all of the assets which came to hand, or that the assets were employed in the proper administration of the estate. On the other hand, the liability of an executor de son tort to the rightful personal representative is not like that of a personal representative but a general law liability for interference with the assets of another. Thus, the application of the assets of the deceased in the due administration of the estate is not a defence but because the rightful executor was in any case bound to make such payments so that the estate has not suffered any loss the payments may be used in mitigation of damages. Therefore, if all the assets coming into the hands of the executor de son tort were applied in this way, the rightful personal representative is only entitled to nominal damages. The title of a person taking from an executor de son tort is good as against the rightful personal representative if the transaction is one which can be lawfully performed by executors and the alienee has fair reason to believe that he or she is dealing with someone authorised to act as executor."
Having reviewed case law and modern probate texts, I am inclined to the view that the proposition that "an executor who has administered the estate without taking probate is liable only for what he has actually received, and is not liable to account on the basis of wilful default" is essentially an intuitive acceptance of the logical reasoning articulated in Dal Pont's Law of Succession (extracted in paragraphs [20] and [32] above) and Certoma's The Law of Succession in New South Wales (extracted in paragraph [48] above) that "an executor de son tort, having no obligation to get in estate assets, cannot by definition be liable in respect of assets he or she has not dealt with".
Beyond logic, the proposition under review has ostensibly derived authority more by repetition than by concrete examples of intermeddling executors who have been held to account. Many of the authorities relied upon in legal literature dealing with a renunciation of probate and associated concepts are of ancient (or, at least, not a recent origin). In reading cases, practice books, textbooks and commentary on probate law and practice care needs to be taken in the application of old authorities to modern problems in the administration of a deceased estate. Rules of law and rules of practice often tend to be intermingled. What to one era might be perceived as a rule of law might to another be viewed as a rule of practice, and vice versa. What is generally constant, however, is that all rules are informed by the purpose they serve; namely, the due administration of a deceased estate.
This can be seen in a foundational case for the equitable principle that the office of an executor is prima facie a gratuitous one. In Robinson v Pett (1734) 3P.WMS.249; 22 ER 1049 Lord Chancellor Talbot held that a nominated executor who had renounced probate (but remained at liberty to accept the office of an executor) could not evade "the established rule" against unauthorised remuneration of an executor: "It is an established rule … that a trustee, executor, or administrator, shall have no allowance for his care and trouble: the reason of which seems to be, for that on these pretences, if allowed, the trust estate might be loaded, and rendered of little value. Besides, the great difficulty there might be in settling and adjusting the quantum of such allowance, especially as one man's time may be more valuable than that of another; and there can be no hardship in this respect upon any trustee, who may choose whether he will accept the trust, or not. The defendant's renouncing the executorship is not material, because he is still at liberty, whenever he pleases, to accept the executorship: otherwise, if both the executors had renounced and the ordinary had thereupon granted administration. … And if this were to make any difference, it would be an art practised by executors to get themselves out of this rule, which I take to be a reasonable one, and to have long prevailed. But further; in the present case, the testator has by his will expressly directed what should be the defendant's recompense for his trouble, in case of his refusing the executorship, viz that he should still have the £100 legacy, to which I can make no addition. …"
Tying the liability of an intermeddling executor who, with the leave of the Court, renounces probate to the concept of an executor de son tort has an appearance of logical coherence unless one appreciates that the concept of an executor de son tort has itself been regarded as an anomalous but expedient device to protect the interests of creditors and beneficiaries in an era in which an executor's title to an estate derived solely from a testator's will without a need for a prior grant of probate by a court: FC Hutley "The Executor De Son Tort in the Law of New South Wales" (1952) 25 ALJ 716; Joseph Warren, "Problems in Probate and Administration" (1918-1919) 32 Harvard Law Review 315. Hutley (who ultimately found his way to the Court of Appeal) was the leading probate lawyer of his generation.
The following extract from the paper of Joseph Warren drawn to attention by Frank Hutley (with editorial adaption, footnotes omitted and emphasis added) places the concept of an executor de son tort in historical context: "PROBLEMS IN PROBATE AND ADMINISTRATION EXECUTOR DE SON TORT Whenever one not appointed executor or administrator wrongfully intermeddled with the goods of the deceased he was known as an executor de son tort. It was commonly said that he had all of the duties but none of the rights of a real executor. Such an intermeddling would seem to be a tort [devastavit] for which the rightful executor or administrator could, if already appointed, sue, or, if later appointed, take proceedings by relation back. This simple procedure would seem to-day amply to protect the estate. But under the older law confusion, it was thought, might result if such were the sole remedies of the estate. The executor was conceived as taking title from the will, not from the probate court. He had a prima face right to the surplus, if no residuary legatee were named. Consequently the court had no discretion but to appoint him, unless indeed he were insane. And the probate judge could not require of him a bond, if he were insolvent or otherwise unsuitable. He could, therefore, bring a writ and his general acts bound the estate before probate, provided the will were at some later time proved, even though the executor himself never obtained letters. Such being the case a wrongful intermeddler by taking possession of the estate might well mislead strangers into thinking there was a will in which he was named executor. And this fact could not be verified, for, as a rightful executor could act without proving the will, those interested might well feel that there was no use in searching probate records to find his appointment. Thus grew up, as much as a protection to those interested as a penalty on the wrongdoer, the essential features of the anomalous doctrine of executor de son tort: that a creditor, legatee or next of kin after debts paid could proceed directly against the intermeddler as executor. In such action he was named as executor generally. Accordingly he could so plead that he was only liable to the extent of the assets that came to his hands. And he could show under the plea of plene administravit that he paid debts of equal or of superior degree to that of the plaintiff. Whether the wrongdoer was chargeable by the executor merely as a tortfeasor or had incurred the liability of an executor de son tort when there was a duly appointed representative in existence at the time of his acts seems to have depended upon whether the wrongdoer interfered with the estate as executor. In any event it seems clear that he could plead in mitigation of damages, though not in bar, of the suit of the true executor or administrator, payment of debts of the estate."
Re Lyndon was not a case in which the (potential or actual) liability of an intermeddling executor seeking leave to renounce probate was an issue. Pape J was satisfied that all beneficiaries of the deceased's estate were adults and, with the benefit of legal advice, had given their fully informed consent to the executor's application for leave to renounce probate. He was also satisfied that no creditors of the deceased would be adversely affected by a renunciation of probate.
His Honour's judgment is reported principally as an application of the Irish judgment of Warren J in In the Goods of Honoria Fitzpatrick (1892) 29 LR (Ir) 328 on the question (answered in the affirmative) whether the Court had power to accept an intermeddling executor's renunciation of probate. In that case, Warren J doubted that any intermeddling of the executor before him had been sufficient to render the executor an executor de son tort (he had only sought to preserve the estate); the only person interested in the estate consented to the executor's renunciation; and it would have been a hardship on the executor to refuse his application for leave to renounce. Warren J relied upon the 8th edition of Williams on Executors as a work of high authority.
The authority relied upon by a Pape J in Re Lyndon in support of the proposition that "[the] law appears to be that an executor who has administered the estate without taking probate is liable only for what he has actually received, and is not liable to account on the basis of wilful default" is the judgment of Vice-Chancellor Shadwell in Lowry v Fulton (1839) 9 Sim 104; 59 ER 298.
The headnote of that judgment includes a statement that appears to have taken on a life of its own: "An executor who does not prove, but acts, is answerable only for what he actually receives".
That statement is preceded by recognition that, on the facts of the case, the executor sought to be charged had never applied for probate or acted in the capacity of an executor. He had acted only as an agent for a co-executor who had held himself out and acted as such.
Relying upon a judgment of the Privy Council in Orr v Newton (1791) 2 Cox Eq Cas 274; 30 ER 127, Shadwell VC made the following observations: "No one is bound by law to prove a will. No case has been cited to shew that an executor not proving is liable for the default of an executor who does prove. As long as he does not prove, he is merely liable for what he receives."
Lowry v Fulton involved a claim by residuary beneficiaries for compensation for neglect on the part of an executor to withdraw funds invested in a company before the company failed. The executor who had, and exercised, decision-making responsibility for investment of the estate was not, in the subject proceedings, sued. The beneficiaries sued instead an executor who had not applied for probate and who denied that he had acted, or intended to act, as an executor, claiming to have been no more than an agent for the active executor. He having died during the course of the proceedings, his widow (as executrix of his will) was sued in his stead.
In concluding his judgment Shadwell VC stated the following (with emphasis added): "Evidence has been given that Colonel Casement [the active executor] holds a high office in Bengal; and, without doubt, he is a man of integrity; and it is therefore to be assumed that, if the case is merely what the Plaintiffs represent, when they apply to him he will at once indemnify them for the loss occasioned by his leaving the testator's assets in the hands of Mackintosh & Co [the failed company]. But they have not chosen to make him substantially a party to this suit; and my opinion is that, upon the case which the Plaintiffs bring forward against Mrs Fulton [the legal personal representative of the named executor who did not apply for probate], they are not entitled to relief against her; for, in my opinion, there is no evidence whatever that Mr Fulton received anything, except as an agent of Colonel Casement, to whom alone he could be responsible. …"
The judgment of the Privy Council in Orr v Newton relied upon in Lowry v Fulton may be read as going no further than its headnote: "Executor, who has not proved, not considered as acting, by assisting a co-executor who had proved in writing letters to collect debts. Nor by writing directly to a debtor of the testator, and requiring payment."
The defendant was one of three executors who "acted" in relation to a deceased estate. Only one of them proved the will of the deceased. He undertook to act solely, and did act solely, until he died. After his death the other two executors joined in acting, but the defendant acted only with, and under the advice of, his surviving co-executor (who was a "professional man") and with "no act of receipt, payment, activity, or interference" proved against him during the life of the professional man. Upon the death of the professional man the defendant acted alone. In acting alone, "he did his utmost to possess himself of the testator's effects, and took the best advice to be had". Lord Camden, in announcing the decision of the Privy Council, accepted that the defendant seemed "to have been more than ordinarily industrious, and there is no colour to charge him with fraud, dishonesty, or embezzlement".
The plaintiff, representing residuary beneficiaries, charged the defendant with not having recovered a debt (secured by a mortgage) due at the testator's death. Throughout the time he had been acting alone, following the death of the professional man, he had been endeavouring to recover the debt without effect, and therefore was not able to account to the plaintiff for the amount of it.
The plaintiff's suit was brought 21 years after the deceased's death, in circumstances in which, after the payment of two legacies, the residue of the estate had been paid to the beneficiaries represented by the plaintiff. The Board held that, unlike the defendant, the deceased's beneficiaries must have known of neglect in recovery of the debt, ostensibly secured by a mortgage which was apparently good security but ultimately became deficient.
I infer from the Board's judgment that the beneficiaries themselves had taken no steps to call for payment of the debt and that the defendant had no reason to suspect the solvency of the debtor. If the beneficiaries had demanded that he take action to recover the debt, "the want of a probate in [the defendant] would have been a bar to his recovering in any suit whatever".
The defendant submitted "to account for his own single acts" and was not required to do more. The Board concluded that "[as] the court below, upon [the facts here summarised] charged [the defendant] with the whole original mortgage money and interest, we cannot but think they have done wrong".
[It did not help the plaintiff's case that he had apparently bid at a sale of the mortgaged estates and, had he "kept his contract", the estate would have been sold for much more than it did at last.]
This case is not a strong foundation for the proposition that "an executor who has administered the estate without taking probate is liable only for what he has actually received, and is not liable to account on the basis of wilful default". On the facts found, there was no wilful default by the defendant. There was nothing that he "ought" to have done that he did not do. He was innocent of any wrongdoing. The beneficiaries who sought to hold him to account for something they contended he "ought" to have done were themselves neglectful of their own interests in administration of the estate.
In Re Lyndon, Pape J cited In the Goods of Badenach (1864) 3 Sw&Tr 465; 164 ER 1355 as an illustration that to allow an executor who has intermeddled in an estate to renounce probate might well seriously affect the rights of beneficiaries. It was relied upon for nothing more than that. And in that case, after an executor had been held liable to an infant beneficiary, in separate Equity proceedings, as having (in common with a co-executor) accepted the trusts and executorship of the deceased's will before renunciation, he himself applied to the court for a declaration that his renunciation was invalid. On his own application, the renunciation (on an incorrect statement that he had not intermeddled in the estate) was held not to be valid because, at the time he renounced, he was "not in a position to execute the renunciation". The renunciation was formally declared invalid and the executor was given leave to take probate of the will.
Incidentally, in the course of argument as briefly reported in Badenach, the Probate Judge (Sir JP Wilde) is recorded as having said that there was nothing in the Court of Probate Act 1857 UK, the equivalent of PAA section 69(a), that operated to prevent the court from allowing a retraction of a renunciation "according to the old practice in a case fit for it".
The idea that "an executor who has administered the estate without taking probate is liable only for what he has actually received and is not liable to account on the basis of wilful default" may have its roots in common law reasoning if it is correct (as Latham CJ appears to have held in National Trustees Executors and Agency Co of Australasia Limited v Dwyer (1940) 63 CLR 1 at 18) that "[a] personal action against an executor in which the plaintiff relies upon a devastavit" is "an action on the case", implicitly a tort, a description called into question by Perram J in a paper entitled "The [Origins] and Present Operation of the Action in Devastavit" [2012] (FCA) FedJSchol [Federal Judicial Scholarship] 23, commended in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, London, 21st ed, 2018), page 954 ([52-02]), footnote 7.
Latham CJ's characterisation of a devastavit claim as an "action on the case" was directed to consideration of a "personal action" against an executor as distinguished from an "administration action" for an order that an estate be administered by the court. That distinction was expressly noted by Starke J (at 63 CLR 30) and Dixon J (at 63 CLR 36).
The context in which the Chief Justice characterised a personal action against an executor as an action on the case and, implicitly, as a tort appears in the following extract of his judgment (at 63 CLR 17-18): "The plaintiffs claimed a declaration that the defendants had been guilty of breach of duty as executors, accounts on the footing of wilful default, administration of the estate, and other appropriate relief. The plaintiff's case, therefore, is entirely founded upon alleged breach of duty by the executors in getting in money owing. Such a breach of duty is a devastavit … The plaintiffs rely and must necessarily rely upon a devastavit in order to obtain judgment de bonis propriis. If no claim were made based on a devastavit, there would be no dispute between the parties. The executors do not deny that the plaintiffs are residuary legatees or that, when they have assets, they are bound to distribute them among the class of residuary legatees of which the plaintiffs are members. The only dispute is a dispute as to whether the executors have been guilty of negligence in their administration of the estate. Accordingly, the action is necessarily and essentially an action based upon a devastavit. Either a creditor or a beneficiary may bring an action based upon a devastavit. It may be noted that a proceeding by a beneficiary for a legacy generally takes the form of an administration action because an action at law does not lie against an executor for a general legacy to which he has not assented even though he may have expressly promised to pay, unless the executor 'has by arrangement with the legatee ceased to hold money bequeathed in his character of executor so that he has become a debtor to the legatee' … The terms 'action of devastavit' (that is, an action based on an allegation of devastavit) and open 'administration action' are not mutually exclusive. An administration action may or may not be an 'action of devastavit'. But an 'action of devastavit' will usually, if not always, be an administration action. A breach of duty by an executor constituting a devastavit is a common basis for an administration action. ... A personal action against an executor in which the plaintiff relies upon a devastavit is an action on the case within 21 Jac I. c 16, s 3 [embodied in local legislation], and the right of action, so far as it is necessary depends upon a devastavit, is barred [by the statute] six years after the devastavit … [Where the action must be framed, and the plaintiff must rely, on a devastavit, and six years have elapsed, the Statute of Limitations applies] …"
One of the cases relied upon by the Chief Justice (In Re Blow [1914] 1 Ch 233) expressly referred to a devastavit claim as a "tort", more explicit in that characterisation than Latham CJ's characterisation of a personal action in devastavit as an action on the case.
Latham CJ's implicit characterisation of a devastavit claim as tortious may at best draw qualified support from Sir Francis Buller's classic common law practice text, An Introduction to the Law Relative to Trials at Nisi Prius (London, 7th ed, 1817) which treats devastavit under the headings of assumpsit (an action in trespass on the case, but generally seen as contractual or "quasi-contractual" restitutionary in nature), as well as debt (paragraphs [141a] and [169a]), the remedy for which would be a judgment in a money sum for the payment of damages or a debt.
The context in which Latham CJ discussed the characterisation of "devastavit" was one in which the question was whether a claim was barred by a Limitation Act. So too were each of the cases principally relied upon by his Honour: Thorne v Kerr (1855) 2 K&J 54; 69 ER 691; In re Gale (1883) 22 ChD 820; In re Hyatt (1888) 38C 8D 609; Lacons v Warmell [1907] 2 KB 350, 361; and In re Blow [1914] 1 Ch 233, 240. That context may not have lent itself to a definitive treatment of the jurisprudential origins of particular types of claim in the context of what is necessary for the due administration of a deceased estate because the focus was upon characterisation of a claim for the purpose of particular legislation and outcomes did not necessarily depend upon differences between law and equity.
Be that as it may, the current edition of Williams, Mortimer & Sunnucks (as the following extract demonstrates) is dismissive of characterisation of an action in devastavit as a tort.
Citing Bacon's Abridgement (an ancient legal encyclopaedia) under the heading "Executors", paragraph [52-02] of Williams, Mortimer and Sunnucks defines devastavit in the following terms with editorial adaption and (omitting footnotes): "A representative may become personally liable or accountable from his own assets if he violates or neglects his duties in respect of the estate. This species of misconduct is called in law a devastavit: that is, a wasting of the assets. It has been defined as: '… a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duty imposed on them, for which executors or administrators must answer out of their own pockets, as far as they had, or might have had, assets of the deceased.' Despite some suggestion that an action in devastavit was an action in the tort of trespass [Thorne v Kerr (1855) 2 K&J 54 at 63; 69 ER 691 at 695], and historical examples of claims for devastavit at law [Lacons v Warmoll [1907] 2 KB 350 at 350-362], the roots of the modern doctrine lie in equitable actions for administration, in which the representative is liable to account in a manner akin to a trustee or gratuitous bailee."
The final section of this paragraph recognises the shift in focus from a cause of action governed by "tort law" (or a restitutionary cause of action at common law) to an administration suit in equity under "modern doctrine". Characterisation of "a devastavit" as a tort or by reference to another common law cause of action (such as "quasi-contract" or debt) is not to be displaced by recognition that most devastavit actions are in "modern" times procedurally subsumed in an administration suit, characteristic of an exercise of equity jurisdiction.
In a system of court administration that favours a partial administration suit (authorised by UCPR rule 54.3 or an equivalent provision) over a general administration order (explained in McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623) differences in the approaches of common law and equity to devastavit (more commonly called "waste") might have no significance outside the context of a Limitation Act.
Older texts (such as the 1829 edition of Wentworth, The Office and Duty of Executors; Williams' 1841 edition of his Treatise on the Law of Executors and Administrators; and Holdsworth and Vickers' The Law of Succession, here extracted) do not discuss devastavit in the context of a breach of fiduciary duty. Although the essential concept of a "fiduciary" predates the 19th century its modern usage as a routine expression dates from the mid-19th century: Paul Finn, Fiduciary Obligations (Lawbook Co, 1st ed, 1977; Federation Press, Republication, 2016), page 1, paragraph [2]; LS Sealy, "Fiduciary Relationships" (1962) 69 Cambridge Law Journal 69 at 71-72.
Perhaps the best and most authoritative account of how an action in devastavit played out in the days when court procedures were defined in shorthand Latin is found in the judgment of Dixon and Evatt JJ in Levy v Kum Chah (1936) 56 CLR 159 at 167-173. A useful exposition of old style thinking about an action of devastavit and defences to such an action can be found in a paper by Archie J Rabinowitz published as "Plene Administravit: Obscure but not Obsolete" (2009) 28 Estates, Trusts & Pensions Journal 110.
The different roles of the common law and equity in dealing with "devastavit" (or "waste") can be found in WS Holdsworth and CW Vickers, The Law of Succession: Testamentary and Intestate (Oxford, 1899) at pages 222-223, here extracted with footnotes integrated in the text and emphasis added: "The representative may make himself liable for a devastavit. [He is then said to be liable as for his wilful default. …] 'This is a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duty imposed upon him, for which he shall answer out of his own pocket, so far as he had, or might have had, assets of the deceased': Williams, Executors, page 1690. Thus the representative may be personally liable for a devastavit (1) by doing wrongful acts, e.g. if he pays his own debt with the deceased's money; or (2) by neglecting his duties, e.g. if he pays debts out of their legal order [It is otherwise if he pays a creditor of a lower degree without notice of the existence of a creditor of a higher degree; or if being himself the creditor of a lower degree, without notice of a creditor of a higher degree, he retains his debt. Re Fludyer (1898) LR 2 Ch 562], or if he pays legacies when there is not enough to pay debts, or if he allows the estate to remain in an improper state of investment. The rule at law was that the representative was in all cases liable personally for loss of the assets if once they had come to his hands. The rule in equity (which has prevailed in all cases since the Judicature Act) is that the representative is in this respect in the position of a gratuitous bailee; if he lose the property through no fault of his own he is not liable [Job v Job LR 6 CD 562]. If one of two representatives is guilty of a devastavit in which the other did not participate, only the guilty person will be held liable. If he either by his act or neglect helped to make the devastavit possible both will be jointly and severally liable, e.g. if one assents to his co-representative retaining the property, and the co-representative subsequently misapplies it; for it is owing to such assent that the property was lost [Clough v Bond 3 Myl and Craig 490; Booth v Booth 1 Beav 125]. A representative cannot as a rule delegate his duties to any third person. In some cases, however, he may do so. 'I think,' said Lord Halsbury, 'it is quite clear that a trustee is entitled to rely upon skilled persons in matters in which he cannot be expected to be experienced [Learoyd v Whiteley LR 12 AC 727, 731].' That is where there is 'moral necessity from the usages of mankind [Lord Hardwick, ex parte Belchier, Amb 218].' Thus he must employ solicitors to conduct a law suit, or stock-brokers to sell stock. In such cases, he will not, in the absence of fraud, or negligence in the choice of his agents, be liable, if by the acts of these agents loss is caused to the estate [Speight v Gaunt, LR 9 AC 1, 4]."
In this treatment, as in other texts, an assumption is that the liability of "a representative" was tied to possession of estate assets.
Even if one accepts that the proposition that "an executor who has administered the estate without taking probate is liable only for what he has actually received and is not liable to account on the basis of wilful default" has a foundation in older case law, practice books or textbooks based upon them, an axiomatic confinement of the liability of an executor de son tort to "what he has actually received" is not consistent with developments in the law (evidenced by equitable principles governing fiduciary relationships, the common law's expansion of liability for negligence and evolving concepts of property to include, for example, intellectual property or confidential information) or the way deceased estates are commonly administered by professionally qualified lawyers, accountants and financial advisors.
In any event, neither a grant of leave to renounce probate nor a renunciation of probate should, of itself, be taken to release an intermeddling executor from such, if any, liability he or she might have arising from the fact of intermeddling. Whether an intermeddling executor has, in fact, a liability arising from intermeddling, and the nature and scope of any such liability, should be open for determination when (a remedy having been sought or specifically identified) all the facts of the case can be considered.
Depending upon the nature of his or her intermeddling, an intermeddling executor who is or may be personally liable for a breach of trust may seek from the Court an order that he or she be relieved from personal liability on the basis that he or she has acted honestly and reasonably and ought fairly to be excused: Trustee Act 1925 NSW, section 85, read with the definitions of "trust" and "trustee" in section 5: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (Lexis Nexis Butterworths, Australia, 8th ed, 2016), paragraph [22.12]; Re Kay [1897] 2 Ch 518 at 521; National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 30-31; University of Adelaide v Attorney General (SA) [2018] SASC 82; (2018) 18 ASTLR 11 at [51]; JD & KZ Zohs Properties Pty Ltd v Ferme [2015] SASC 55 at [60] (all cases dealing with an executor, not an executor de son tort).
The expression "trust" is defined by section 5 to include "implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of legal representative of a deceased person". An intermeddling nominated executor who does not apply for a grant, or who renounces probate, may be a constructive trustee (of property) and is ordinarily judged by reference to the duties incident to the office of a legal personal representative.
In an appropriate case, the expansive definition of "trust" in the Trustee Act 1925 may invite consideration of other provisions of the Act. For example, section 59 provides that a trustee is "chargeable only for money and securities actually received by the trustee" and is "answerable and accountable only for the trustee's own acts, receipts, neglects, or defaults, and not for those of any other trustee … unless the same happens through the trustee's own wilful neglect or default". Section 86 provides that "[where] a trustee commits a breach of trust at the instigation or request of, or with the written consent of a beneficiary, the Court may, if it thinks fit, make any such order as to the Court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming through the trustee".

Armitage v Nurse

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