Devastavit

Latin for 'he has wasted.'

This is the technical word referring to a personal representative who has mismanaged the estate and allowed an avoidable loss to occur.

These errors or omissions expose the personal representative to personal liability for the loss.

In Saunders v Crouse Estate, the Nova Scotia Court of Appeal adopted this definition:

“Where a personal representative mismanages, squanders or neglects to get in the assets of an estate, he is guilty of wasting them or, as it is said, he has committed a devastavit.”

In Commander Leasing Corp. v. Aiyede, the Ontario Court of Appeal said:

"A devastavit, or a wasting of the assets, is defined to be a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duty imposed on them, for which executors or administrators must answer out of their own pockets, as far as they had, or might have had, assets of the deceased.... It applies equally to claims by creditors and legatees and to deliberate or negligent acts or careless administration, or even to acts committed in ignorance of certain material facts which defeat their rights.

"Here, in distributing the entire estate, presumably to its beneficiary or beneficiaries, the respondent acted in clear disregard of the appellant's outstanding claim as a creditor. In so doing she was in breach of her duty as executrix of the estate. Her conduct, in our view, amounts to a devastavit rendering her personally responsible to the appellant."

In the Saunders case noted above, § 31(1) of the Nova Scotia Probate Act states:

”The court of probate, upon the summary application of anyone interested in the estate, if it is proved to the satisfaction of the court that an executor is wasting the estate, may order the executor to give security for the performance of his duty.”

REFERENCES:

• Commander Leasing Corp. v. Aiyede 16 ETR 183 (1984)
• Probate Act, Statutes of Nova Scotia 2000, Chapter 31
• Saunders v Crouse Estate 26 ETR 2d 250