Intermeddling occurs when an individual who is not entitled to act as an executor performs duties which would ordinarily be the responsibility of an executor. Or where a person has been appointed as an executor but doesn’t wish to take on the role (they want to renounce) but subsequently becomes involved in the administration of the estate.
In doing so, they are deemed to have accepted a role as a Personal Representative of the deceased’s estate “de son tort” i.e. through their own wrongdoing. This enables them to be held accountable as if they had actual authority to administer the estate.
What counts as intermeddling?
S 28 Administration of Estates Act 1925 provides that an individual will be held to have intermeddled where they “obtain, receive or hold any real or personal estate of a deceased person” without consideration, or release any “debt or liability due to the estate”.
The wide ambit of this provision is of particular significance to foreign parties who are the beneficiaries of assets in England. In New York Breweries Company v Attorney-General [1895-99] All ER Rep Ext 1696 for example, American beneficiaries of shares in an English company requested these to be transferred into their name whilst administering the estate of an individual who was domiciled in the USA. The House of Lords determined that by doing so they had “taken possession of and administered” part of the deceased’s estate in England and were therefore liable to penalties and to pay probate duty upon the assets.
What doesn’t count as intermeddling?
There are a number of acts which, although they would appear to fulfil the conditions of s 28, will not constitute intermeddling.
Organising and paying for the deceased’s funeral from their estate, for example, will not render an individual an executor de son tort (see Harrison v Rowley (1798) 31 ER 110).
Nor will performing acts of necessity such as paying medical fees, arranging urgent repairs to the deceased’s property, or creating an inventory of their assets and liabilities.
Additionally, an individual who only deals with the deceased’s foreign assets will not be held to have intermeddled in their English estate (see Beavan v Lord Hastings (1856) 69 ER 973). This is of particular importance for individuals who arrange for assets to be dealt with by a notary or other official in civil law jurisdictions such as Spain or France, where an executor is not usually named or needed. Initiating the process will not expose an individual to intermeddling in England simply because the deceased also had assets within the jurisdiction.
Who needs to be careful?
An obvious scenario in which an individual may wish to be particularly circumspect with regards to the dangers of intermeddling is where they do not wish to become an executor because the administration of the estate would be particularly cumbersome. Unlike an individual who is entitled to be an executor, an executor de son tort does not have an entitlement to renounce probate. This may be the case where the estate is particularly large, or there is a probate dispute; for example, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or a challenge to the validity of a will.
Another important circumstance in which an individual will want to be especially careful not to become an executor de son tort is where the estate is insolvent. In such a scenario, all executors are under a duty to administer the estate for the benefit of the estate’s creditors, who may claim against the executor for any losses suffered. An aggrieved beneficiary of an insolvent estate may be particularly inclined to argue that an individual with considerable assets has become an executor de son tort so as to recover their loss.
Finally, foreign personal representatives will want to be especially careful not to accidentally become an executor through intermeddling. This danger is especially pressing for individuals dealing with assets abroad in jurisdictions with differing succession regimes (e.g., forced heirship), who may assume that UK assets are to be distributed in the same manner as assets abroad. If UK assets are distributed incorrectly, then UK beneficiaries may be able to bring claims against foreign intermeddling executors for losses suffered.
Speak to our International Private Wealth team to see how they can help with cross border estates and intermeddling.
