Jamaica Gleaner

More on ‘dead lef’

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefiel­d DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.

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

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

Failing to take steps to administer the estate.

Failing to keep proper estate accounts.

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

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

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

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

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

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

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

[1] person who stands to receive a legacy

 ??  ??
 ??  ?? MCGREGOR
MCGREGOR

Newspapers in English

Newspapers from Jamaica