An executor of his own wrong.
Williams' Law Dictionary defined an executor de son tort as: "He that takes upon him the office of an executor by intrusion, not being so constituted by the testator...."
In Tsang v Chen, the Alberta Court of Queen's Bench, Madam Justice Kenny adopted these words:
"One who assumes the office of executor, despite the lack of appointment to that position by the deceased or by the court, on the failure of the deceased to make such a selection ... Meddling with the goods of the deceased is sufficient to render one an executor de son tort. An executor de son tort becomes liable to the rightful representatives and other interested persons, to the extent of such assets as he has received less any proper payments he has made."
In Canadian Commercial Bank v McLaughlan, Justice Wachowich added:
"The executor de son tort is ... person not lawfully appointed executor or administrator may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship....
"Two principles are involved. The first ... is that no one should be permitted, by refraining from taking out probate or administration, to obtain possession of the deceased's property free from his liabilities. The second is that where a person does acts characteristic of an executor the natural inference to be drawn is that he is named as executor in a will which he has not yet proved; and third parties should be able to rely on this assumption.
"Earlier authorities offer some guidance in determining the nature of the conduct that will give rise to liability. Examples found in very early cases include the milking of the deceased's cows, the taking of a Bible, the demanding and receiving of a debt due to the deceased and the carrying on of the deceased's trade. Transferring the shares and debentures of the deceased or selling his property are more obvious examples of activity which has caused individuals to be considered executors de son tort....
"More recently, the Ontario High Court found that the carrying on of the deceased's farming business, maintaining the property and paying taxes and insurance premiums did not constitute the children executors de son tort.
"While it is true that the least intermeddling with an estate may be sufficient to result in a person being regarded as an executor de son tort, the conduct of the person must be indicative of an intention to usurp the functions or authority of an executor."
REFERENCES:
- Canadian Commercial Bank v McLaughlan 69 Alberta Law Reports (2d) 337 and also at 35 ETR 89 (1989).
- Tsang v Chen 2005 ABQB 772; also cited as Re Estate of She, published at canlii.org/en/ab/abqb/doc/2005/2005abqb772/2005abqb772.html
- Williams, Thomas, A Compendious and Comprhensive Law Dictionary Elucidating the Terms and General Principles of Law and Equity (1816).