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Executor de son tort

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 Alta. L. R. (2d) 337 and also at 35 ETR 89 (1989).
Tsang v Chen 2005 ABQB 772; also cited as Re Estate of She
Williams, Thomas, A Compendious and Comprehensive Law Dictionary Elucidating the Terms and General
Principles of Law and Equity (1816).
CATEGORIES AND TOPICS:
This term applies to the following categories or areas of law:
Trusts, Wills, Estates and Probate Law Dictionary
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Chapter V. Executors And Administrators


This section is from the book "A Treatise On The Law Of Contracts", by William W. Story. Also available from
Amazon: A Treatise On The Law Of Contracts.
328. Another class of agents consists of executors and administrators,1 who are the personal representatives and
agents for the testator, the former being appointed by him in his will, and the latter being appointed by the court
having jurisdiction over the probate of wills. The authority of an executor, being given by the will itself, becomes
complete upon the death of the testator;2 but the authority of the administrator being derived from the court, he
cannot exercise his full powers until letters of administration have been granted.3 Therefore, although an executor
may bring an action before proving a will, the administrator must wait until letters of administration have issued.4
For the same reason, a release, or assignment, or surrender, which would be valid if made by the executor before
probate, would not ordinarily be binding if made by the administrator before he takes out letters of administration.5
But after an administrator has received letters, the same general rules apply to him as to an executor.
329. There are several kinds of executors and administrators, namely: First, the executor proper, who is appointed
legally by will. Second, the executor de son tort, as he is called, who is any person who, no person having been
appointed by the will, officiously assumes the office and the duties of an executor.1 Any intermeddling with goods,
which is not done out of mere charity or kindness, but which is an assumption of right over the goods to be
administered upon, will be sufficient to render a person an executor de son tort. Thus, it has been held, that the
taking a Bible or a bedstead; or killing cattle; or using, giving away, or selling goods; or entering upon lands leased
and taking possession; or demanding, receiving, or receipting for the debts due to the deceased; or paying debts due
from him, will constitute a person executor de son tort.2 One who collects money in a savings bank, belonging to
the deceased, and pays it out for expenses of the last sickness and funeral, becomes liable as executor de son tort.3
But it does not per se constitute one an executor de son tort, to receive money from one who is executor de son tort,
and apply part to one's own debt, and the remaining sum to the funeral expenses.4 But the performance of offices
of mere charity and kindness, such as locking up the goods for preservation, or directing the funeral and paying the
expenses thereof, or making an inventory, or feeding his cattle, will not make a person executor de son tort.5 So,
also, if a person have a colorable title to the goods with which he meddles, or if he act as agent for a rightful
executor during the life of the latter, and not otherwise, he will not render himself executor de son tort.6 Payment
by an executor de son tort may be good