When a loved one passes away, family members and close friends often step in to help deal with practical matters. They may secure a residence, arrange a funeral, gather important documents, or safeguard personal belongings.
However, there is an important legal line between protecting estate assets and taking control of them.
The Alberta Court's decision in Re She (Estate Of), 2005 ABQB 772 (CanLII) serves as a cautionary reminder that removing property from a deceased person's home before a personal representative is appointed can create significant legal problems and potentially expose an individual to personal liability.
The Risks of Acting Too Quickly
After a death, it is common for individuals to believe they have a right to collect certain belongings, particularly where they had a close relationship with the deceased.
Some may assume that:
- They purchased the property;
- The deceased intended them to have the property;
- The property was jointly owned; or
- They are protecting the property from loss or theft.
Unfortunately, those assumptions can lead to disputes later.
Until proper authority has been granted, individuals should be cautious about removing, selling, distributing, or otherwise dealing with estate assets.
What Happened in Re She?
The case involved a woman who died without a will.
Before an administrator was formally appointed to manage the estate, a friend of the deceased removed virtually all of the contents of her condominium, including furniture, appliances, and personal belongings.
After obtaining a Grant of Administration, the administrator discovered that the property had been removed and demanded its return.
The individual who removed the items argued that many of the belongings were jointly owned because he had purchased them during the deceased's lifetime.
The court was therefore required to determine whether he had the right to remove the property and whether he could be held responsible for doing so.
What Is an Executor de Son Tort?
One of the most important aspects of the decision is the court's discussion of an executor de son tort.
The term refers to a person who assumes the role of an executor without legal authority.
In simple terms, a person can become an executor "of their own wrong" when they begin dealing with estate assets as though they have the authority to administer the estate.
Examples may include:
- Removing estate property;
- Selling estate assets;
- Distributing belongings;
- Paying debts without authority; or
- Taking control of estate affairs before appointment.
A person does not need a formal court appointment to face liability.
In some circumstances, simply interfering with estate property can be enough.
Ownership Is Not Always Clear After Death
Many estate disputes arise because ownership of property is not clearly documented.
People frequently assume they own certain assets because:
- They paid for them;
- They contributed toward them;
- They lived with the deceased; or
- They used them regularly.
However, the legal analysis is often more complicated.
Courts will consider evidence regarding:
- Ownership records;
- Receipts;
- Gifts;
- Possession;
- Control; and
- Any agreements between the parties.
When someone removes property before ownership issues have been resolved, they create significant risk for themselves.
Gifts Can Change Ownership
The decision also highlights an important principle regarding gifts.
Even where someone originally purchases an item, ownership may later transfer if it is given as a gift.
Many people do not appreciate that once a gift is completed, the original purchaser may no longer retain ownership rights.
The court concluded that property purchased for the deceased and placed under her control could not simply be reclaimed later because another person had originally paid for it.
This issue frequently arises in estate disputes involving:
- Household furnishings;
- Vehicles;
- Jewelry;
- Electronics; and
- Other personal property.
Why Documentation Matters
A recurring theme in estate litigation is the importance of evidence.
The individual in this case argued that the property had been jointly owned.
The problem was the lack of supporting documentation.
Without objective evidence confirming an ownership arrangement, the court was not prepared to accept the claim.
Many disputes can be avoided when clear records exist, including:
- Purchase receipts;
- Written agreements;
- Ownership records;
- Gift documentation; and
- Correspondence confirming intentions.
When records are unavailable, resolving ownership disputes becomes much more difficult.
Estate Assets Should Be Preserved
One of the practical lessons from the case is that preserving property is often safer than taking possession of it.
Before an executor or administrator is authorized to act, the preferred approach is generally to:
- Secure the property;
- Document its condition;
- Create inventories where appropriate;
- Preserve important records; and
- Avoid distributing assets.
This reduces the risk of later allegations that property was lost, damaged, or improperly removed.
Missing Property Creates Valuation Problems
Another issue highlighted by the case is that removing assets can make it difficult to determine what property existed at the time of death and what it was worth.
Once items disappear from a residence, an executor or administrator may be forced to rely on:
- Memory;
- Incomplete records;
- Photographs; or
- Witness accounts.
Courts are often reluctant to allow the person who removed the property to benefit from the uncertainty created by their own actions.
Funeral Expenses Do Not Justify Taking Estate Property
Many individuals spend money on funeral arrangements expecting to be reimbursed by the estate later.
While reasonable funeral expenses are often recoverable, that does not create a right to remove or retain estate property.
The fact that someone paid expenses on behalf of the deceased does not automatically allow them to help themselves to estate assets.
These are separate legal issues that should be dealt with through the estate administration process.
Practical Lessons for Families
Avoid Self-Help Remedies
Do not assume you can remove property simply because you believe it belongs to you.
Preserve the Residence
Secure the property and allow the authorized personal representative to determine ownership issues.
Keep Records
If you believe certain items belong to you, gather receipts and supporting documentation.
Seek Legal Advice Early
Ownership disputes are often easier to resolve before property is removed.
Respect the Estate Process
The executor or administrator should generally be allowed to inventory and assess assets before distribution occurs.
The Bottom Line
Re She (Estate Of) is an important reminder that good intentions do not always protect individuals from liability. Removing property from a deceased person's home before authority has been granted can amount to improper interference with the estate and may expose a person to personal financial consequences.
When ownership is uncertain, the safest approach is to preserve the property, document everything carefully, and allow the estate administration process to unfold before taking action.
How MerGen Law Can Help
At MerGen Law, we assist clients throughout Alberta with estate administration, executor disputes, missing estate property claims, ownership disputes, intestacy matters, fiduciary obligations, and estate litigation. Whether you are an executor seeking to recover estate assets or someone facing allegations relating to estate property, our team can help protect your interests.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about elder abuse should seek professional advice tailored to their specific circumstances.