When someone dies, someone needs to take responsibility for administering the estate. If the deceased has made a will, the people with the right to do so will be named as executors.
If someone dies without making a will, the situation can be more complicated. The law imposes rules regarding who has "first refusal" to apply to administer the estate. The rules broadly follow the intestacy rules (which dictate who will inherit their estate). In most cases, it will be a surviving spouse, or if the deceased died unmarried or widowed, any surviving children will have the first refusal. If there are no children, it will be any surviving parents.
However, a situation can arise whereby the "wrong" person has assumed responsibility for dealing with the estate. For example, people often assume whomever the deceased nominated as their "next of kin" has the right to administer their estate. This is not necessarily correct.
It may be that this does not cause a long-term issue if they have not done a considerable amount, for example, if they have simply arranged the funeral. However, if they have dealt with the estate in a certain way, this can amount to "intermeddling".
Intermeddling is a legal term that means a person has dealt with an estate to such an extent that they have assumed responsibility for it and cannot, therefore, simply "walk away" without the court's approval.
Intermeddling can also occur when the correct person to deal with the estate has assumed the role. This will be fine if they go on to apply for the grant of probate and finalise the estate administration. However, it can cause an issue if a situation arises whereby they no longer wish to act as administrator or there are calls from others (such as their co-administrator or beneficiaries) to no longer carry out the role. Once someone has intermeddled in an estate they cannot just "walk away". As mentioned above, the court's approval will be required.
What constitutes intermeddling?
The difficulty is that there is no set definition of what constitutes intermeddling. As such, you cannot simply compare the actions taken by the individual against a list to decide whether they have intermeddled.
Case law gives certain examples of actions that do and do not constitute intermeddling, as follows:
Examples of intermeddling:
- Selling assets of the deceased.
- Collecting debts due to the deceased and issuing receipts for their payment.
- Paying debts.
- Carrying on a business of the deceased.
- Disposing of the deceased's possessions.
Examples of actions which are not intermeddling:
- Arranging the deceased's funeral.
- Insuring the deceased's assets.
- Gathering and perusing the deceased's papers.
- Collecting the deceased's assets to protect them.
- Arranging urgent repairs.
- Removing assets to secure storage.
- Securing the deceased's property.
- Opening an executor's bank account.
- Making arrangements for the welfare of dependants.
Why does it matter if someone has intermeddled?
It is not unreasonable for someone to ask, "why does it matter?". There may be no animosity in the situation, and someone has simply changed their mind about being able or willing to act as administrator. They may wonder why they cannot simply hand ongoing responsibility for the estate administration to someone else.
It matters because once someone has intermeddled, they have accepted a certain level of responsibility, and therefore liability, for the estate. Walking away and handing responsibility to someone else will not absolve them of liability for any future actions in the estate administration. This can leave them in a difficult position of not being involved in the estate administration but still liable (to an extent) for it. If the court formally removes them as administrator, they are absolved of any ongoing liability. They will only remain liable for actions they carried out.
The opposite is true if someone has not intermeddled. In that case, they could "renounce" their role/right to act as administrator and they will not be liable for any future actions in the estate administration. All they have to do is sign the appropriate form.
What do you do if someone who has intermeddled no longer intends to act as administrator?
Just because someone has intermeddled does not mean they have no means of walking away. There are legitimate reasons why someone who has started dealing with an estate may be unable to continue. Equally, if the wrong person has started dealing with an estate and the situation needs rectifying, this can also be dealt with.
A court application is required to remove anyone who has intermeddled. It is relatively straightforward if the application is consensual (i.e., all those affected by it agree). The person applying for the removal has to explain to the court in a witness statement why the person intended to be removed should be removed, and any replacement administrators need to be identified. They will also need to explain why the proposed replacements are appropriate to assume the role. It may be that only one person is being removed, leaving one or more others to continue dealing with the estate. If so, there will not be any need for replacements to be identified.
Usually, the court deals with consensual applications without needing a hearing.
However, sometimes situations can be hostile, and the court application will be made on a non-consensual basis. The application is similar, but the court may wish to deal with the matter at a hearing.
Recent examples of intermeddling cases
Consensual removal as executor and trustee
A recent example of a consensual application is the case of Mr and Mrs P. They had both been named as executors in Mrs P's late father's will. They both applied for the grant of probate and had every intention of working together (with the assistance of our estate administration team) to administer his estate.
Unfortunately, before the estate administration had concluded, Mr P was taken ill, so it was no longer realistic for him to work with his wife in dealing with the estate. We applied on a consensual basis for his removal as executor and trustee of the estate. As the parties were able to agree on the outcome, the application was able to be dealt with without the need for a hearing and was resolved within 2 months.
Non-consensual application
A recent example of a non-consensual application is Mr and Mrs D. They were in dispute with their siblings regarding the administration of their father's estate. The executors of the estate were our clients' siblings.
The siblings had intermeddled so they could not renounce, even if they would have agreed to. We issued a claim in court, and the court approved the application for their removal. Our clients were appointed as executors and trustees in their place.
