swill453 wrote:Lootman wrote:I would also offer up: "ex dolo malo non oritur actio, nullus commodum capere potest de iniuria sua propria" and "ex iniuria ius non oritur". Otherwise known as the clean hands doctrine, for those actions where I act in good faith and derive no personal benefit.
I don't think that can apply in the case of an executor. Take the case where unknown debts of the deceased come to light after the estate has been distributed.
The executor may have acted in good faith* but can they not be held personally liable?
(* - good faith but not great diligence )
I believe that the important word there is "diligence".
So in the case where a debt of the estate comes to light after the executor has distributed the assets, then that executor MAY be held personally liable. But only where he failed to take reasonable steps to discover that debt.
Same with a case where a gift was made prior to death that was not discovered. The crucial issue is not so much that the executor failed to find it but rather whether he should have found it in those circumstances.
It all leads back to how far an executor should go to meet the required standard.