Claiming against someone for losses caused to the estate
Losses caused to the estate can deplete the assets of the estate and have serious consequences on all parties involved.
There are many situations where beneficiaries may be able to claim against other parties for losses caused to the estate. For example, the executor of an estate may be removed if his actions have endangered the estate, if he has acted dishonestly, if he has acted without proper care, or if he has acted without reasonable fidelity as outlined under the criteria for removing an executor.
A person acting as a substitute decision maker under a power of attorney for property may abuse the testator and deplete funds thereby giving rise to power of attorney litigation. Losses caused to the estate by an executor of an estate can take many forms including: embezzlement, mismanagement of funds and/or assets, or inadequate record-keeping.
One of the first questions that lawyers ask before commencing litigation whether the limitation period has run out? Think of the limitation period as a timer that starts to count down from a certain triggering event. Once this time expires, a lawsuit can no longer be commenced. Different civil wrongs have different limitation periods, be it a slip and fall, a motor vehicle accident, or a claim on behalf of an estate. The Limitations Act, 2002, is a complex piece of legislation that should be interpreted with the assistance of an estate lawyer. There are also many other statutes that govern limitations in estate litigation.
Suppose that after a testatrix’s death, her estate trustee finds out that someone financially abused her while she was alive. This may have depleted her estate value by hundreds of thousands of dollars. Which date would trigger the limitation period clock to commence a claim against the wrongdoer? Is it the testatrix’s death? The date when the estate trustee discovered her assets were misused and depleted? Or the date when the Certificate of Appointment of Estate Trustee is issued? If you believe someone is responsible for losses caused to the estate, it is important to immediately seek legal advice from an estate lawyer.
In addition, various legal principles like the doctrine of discoverability may have to be analysed and applied, depending on the circumstances of each case. Clearly, determining the limitation period to start a claim is a complex task best handled by an experienced estate litigation lawyer. Charles Ticker will explain the estate litigation process to you, lay out the time frames and make sure you have realistic expectations. Losses caused to the estate must be addressed with proper guidance from an experienced estate lawyer.
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