Q&As

Where an estate has been distributed in accordance with the intestacy rules but a Will turns up a number of years later leaving the estate to an individual who did not benefit under the intestacy, what is the liability of the administrator and the beneficiaries under the intestacy?

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Produced in partnership with Oliver Hilton of Radcliffe Chambers
Published on LexisPSL on 16/03/2018

The following Wills & Probate Q&A produced in partnership with Oliver Hilton of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Where an estate has been distributed in accordance with the intestacy rules but a Will turns up a number of years later leaving the estate to an individual who did not benefit under the intestacy, what is the liability of the administrator and the beneficiaries under the intestacy?
  • Wrongful distribution of an estate
  • Devastavit
  • Personal claims
  • Proprietary remedy

Where an estate has been distributed in accordance with the intestacy rules but a Will turns up a number of years later leaving the estate to an individual who did not benefit under the intestacy, what is the liability of the administrator and the beneficiaries under the intestacy?

Wrongful distribution of an estate

The starting point is that a personal representative has power to assent the deceased’s real and personal interest or estate (see section 36 of the Administration of Estates Act 1925). However, the power is only in general in favour of any person who may be entitled to that interest or estate. While, therefore, a beneficiary is entitled to assume that the personal representative has properly administered the estate, and so if they receive assets or money believing that they are entitled in good faith, the legal title passes and they do not have the burden of trusteeship imposed upon them, that does not prejudice the true beneficiary of a remedy if the estate has been distributed to persons who were not in fact entitled to the estate.

In particular, if an estate, or part of one, is wrongly distributed, then its representatives and beneficiaries may have four remedies. First, the beneficiaries may have a claim in devastavit against the defaulting personal representative. Second, the representative, and third the true beneficiaries, may have personal claims

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