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Devastavit

Also known as: Executor Negligence, Wasting Assets

Definition

Devastavit is a legal claim against an executor who has caused financial loss to an estate through mismanagement, negligence, or improper handling of assets, making them personally liable to compensate the estate.

This personal liability means executors must pay from their own pocket—not from estate funds—making devastavit one of the most serious risks executors face when administering estates.

What Does Devastavit Mean?

Devastavit is a Latin term meaning "he has laid waste" and represents a common law action for breach of fiduciary duty by personal representatives. Under Section 25 of the Administration of Estates Act 1925, executors must "collect and get in the real and personal estate of the deceased and administer it according to law." When executors breach this duty and cause financial loss, they face devastavit claims from beneficiaries or creditors. The crucial distinction is that devastavit creates personal liability—executors must compensate the estate from their own money, not estate funds.

Devastavit encompasses three categories of conduct. Direct abuse includes embezzling estate funds or converting estate property for personal use. Mal-administration involves paying claims in wrong order (such as beneficiaries before creditors) or distributing assets incorrectly. Negligence includes failing to sell assets at fair value, not collecting estate debts, or allowing property to deteriorate. For example, Sarah administers her father's £300,000 estate and distributes £280,000 to beneficiaries before discovering an unknown creditor owed £50,000. Since creditors must be paid first under the 1925 Act, Sarah becomes personally liable for £50,000—she must pay from her own money and cannot recover it from beneficiaries.

Executors have protections against devastavit claims. Under Section 61 of the Trustee Act 1925, courts may relieve executors who "acted honestly and reasonably, and ought fairly to be excused." This relief is more commonly granted to non-professional executors who made genuine mistakes. Section 27 allows executors to place statutory advertisements for unknown creditors before distribution. Executors following this procedure gain protection against claims from those who don't respond. Time limits apply: creditors have six years from loss to claim, beneficiaries have twelve years, though no time limit exists for fraudulent breaches.

Common Questions

"Can an executor be held personally liable for mistakes during estate administration?" Yes, executors face personal liability through devastavit claims if they mismanage estate assets. This liability comes from their own pocket, not the estate. Examples include selling property below value, paying beneficiaries before creditors, or failing to collect assets.

"What is the time limit for bringing a devastavit claim against an executor?" Creditors have six years from loss to claim, while beneficiaries have twelve years. However, no time limit exists for claims involving fraudulent breaches or where the executor took estate property for personal gain.

"Can courts forgive executors who commit devastavit?" Yes, courts may relieve executors under Section 61 of the Trustee Act 1925 if they acted honestly and reasonably. This protection is more commonly granted to non-professional executors who made genuine mistakes.

Common Misconceptions

Myth: Estate insurance covers devastavit liability, so executors don't need to worry about personal financial loss.

Reality: Devastavit liability is personal to the executor, not the estate. Executors must compensate from their own pocket. While professional indemnity insurance exists, many lay executors serve without coverage, and policies typically exclude fraudulent acts.

Myth: Executors can't be sued for devastavit if they made honest mistakes.

Reality: Honest mistakes can still result in devastavit liability. The test is whether the executor breached their duty and caused loss—not their intentions. Courts may forgive executors who acted honestly and reasonably under Section 61, but this relief is not guaranteed.

  • Executor: The person who can commit devastavit and bears personal liability when such breaches occur.
  • Personal Representative: Broader term encompassing executors and administrators, both of whom can face devastavit claims.
  • Breach of Fiduciary Duty: Devastavit is a specific type of breach focusing on wasting estate assets.
  • Estate Administration: The process during which devastavit can occur through improper asset handling.
  • Removal of Executor: Courts can grant this remedy in devastavit cases alongside compensation.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.