Posted: Thursday, 4 January 2018 @ 15:07
In this post we look at one of the possible legal claims which can be made against an executor which is called devastavit and addresses an executor who squanders and wastes assets.
What is Devastavit?
Devastavit is a Latin term meaning "he has laid waste" and for our purposes it is used to describe the mismanagement of the estate of a deceased person by his or her personal representative, usually the executor, in "squandering and misapplying the assets" contrary to the duty imposed of them.
When Do You Use It?
Devastavit actions are usually brought against executors who have spent estate money extravagantly or misapplied estate assets.
An executor who commits waste in this way becomes personally liable to those having claims on the assets of the estate, such as creditors and beneficiaries, and will usually be required to make good their misdeeds out of their own pockets.
What Are The Specific Breaches Which Justify A Claim For Devastavit?
The failure of the executor to administer in accordance with section 25 of Administration of Estates Act 1925 and this can include failure to collect assets of the deceased, failing to discharge debts and failure to administer in accordance with the law. Some examples are - Selling property at an undervalue, paying out the wrong beneficiaries, ignoring the intestacy rules.
Can You Also Remove An Executor With Such An Action?
Yes you can.
Can the Executor Use Estate Assets To Defend Such A Claim?
No, the executor should not do so and the beneficiaries could seek a court order or an injunction to prevent this.
Should A Disgruntled Beneficiary Just Sue If He or She Is Made Aware of Examples of Devastavit?
The beneficiary needs to pay careful attention to any pre-action protocols(sadly in my experience many litigants including lawyers do not). The guidance is parties should exchange sufficient information about the matter to allow the other party to understand each other's position. There can be costs consequences if you do not comply. Do not rush in without good advice.