Pre Taking Executors Fees Is Breach of Fiduciary Duty

Despite holding that the pre-taking of a $70,000 fee by an executor was a serious matter, being contrary to Supreme Court rule 25 – 13, a breach of the executors fiduciary duty, and done without consultation with the beneficiaries or their consent, the court excused… Read more

Spousal Committee Removed For Conflict of Interest

In Re Walsh 2015 BCSC 1992 the spouse and court appointed committee of a catastrophically injured wife was removed as committee in part for paying himself a “spousal allowance” to care for her. The Court stated: [73]         The Public Guardian also seeks the removal of… Read more

Personal Representative Duties to an Estate

Personal Representative Duties to an Estate Executors and trustees are often called upon to make difficult decisions relating to matters ranging from the conduct of court actions including settlement to investment decisions. The personal representative often walks a fine line in that a breach of… Read more

Executor Must Not Purchase Estate Assets

 There is a strict rule in equity to prevent a trustee from making a profit out of trust property, that it is prohibited for an executor who is selling trust property, to ever purchase the property personally or in the name of another. Any such transaction will… Read more

Difficult Brother Removed as Executor

  I have noticed over the years and increasing willingness on the part of the court to remove difficult executors that are holding up the probate and administration of the estate.   In one of the shortest cases I have read Re McRae estate, 2015  BCSC… Read more

What Does An Executor Do

An executor’s role in a nutshell is to carry out the instructions of the will and disburse the net estate after payment of all debts and taxes. An executor derives the title from the will of the deceased, and does not have to wait for… Read more

WESA and the Reluctant Executor

Section 108 of WESA and Rule 25-11 re Citations are two of the powerful tools included in the WESA legislation that came into effect on April 1, 2014 when dealing with a reluctant  executor who refuses to proceed with probate for any number of reasons… Read more

Administrator Removed With Special Costs

In Re Campbell estate 2015 BCSC 774, an administrator was removed and ordered to pay special costs of the application on the basis that his conduct throughout was reprehensible and called for reproof and rebuke. Three siblings had been named co administrators of their late… Read more

Removal of a Trustee

Parker v Christopher Parker Family Trust  BCSC 1916 contains a very thorough passage of law by Chief Justice Hinkson on the removal of a trustee. The facts of the case are long and complicated but essentially involve an application to remove a lawyer who had… Read more

The Executor Derives Title To the Deceased Assets From the Will

  Under the terms of the Will, all property of the Deceased Assets is bequeathed to the Trustee upon stipulated trusts.       At common law the executor derives title from the will: Sustrik Estate v. Floyd, 2005 ABQB 880   According to Williams’ Law Relating to… Read more

Executors In Wills Variation Actions Should Remain Neutral

  Executors in Wills Variation actions is a necessary party and should remain neutral in his or her capacity as executor.  Ewasew v Ewasew (1996), 11 ETR (2d) 309 (BCSC)held inter alia that when the executor is not also a beneficiary, his or her role… Read more

Special Costs Awarded Against Executor “Too Involved” In Court Case

In Wilson v Lougheed 2012 BCSC 1166, Justice Ballance awarded special costs for 4 of a 14 day trial against an executor who crossed the line in a highly charged Wills Variation case advanced by his daughter. Paragraphs 25 and 26 sum up the essence… Read more

Appeal Court Allows Trusts to Be Interpreted re Their Meaning

BC Appeal Court have jurisdiction to construe a Trust Deed. See Donovan W.M. Waters, Mark R. Gillen and Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th Ed. (Toronto: Thompson Reuters, 2012) at 1165-66. See also Engelman v. Engelman (1986), 23 E.T.R. 30 (B.C.C.A.) at… Read more

The Factors To Determine an Executor’s Compensation

In the well-known case of Re Toronto General Trusts and Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.), five central factors should be considered by the audit judge in arriving at the amount of an executor’s compensation. The maximum fee for obtaining probate and distributing… Read more

The Trustee’s Even Hand Rule

Estate trustees also are bound by the “Even Hand Rule”- a duty to act impartially as between beneficiaries. In his expansive text on The Law of Trusts in Canada, 2nd ed., (Toronto: Carswell, 1984), Professor Waters describes that rule in the following terms: “It is… Read more