Court Termination of Representation Agreements

Court Termination of Representation Agreements

Baker-McGrotty v Baker 2016 BCSC 699 discuss when the court will exercise its discretion to NOT terminate representation agreements after the appointment of a committee under the Patients Property Act. 26 Section 19 of the Patients Property act provides as follows: 19 On a person… Read more

Joint Account Holders Are Fiduciaries

Joint Account Holders Are Fiduciaries

MacKay v. MacKay Estate,2015 ONSC 7429, held that one joint account holder may serve as a fiduciary in relation to the other simply via the traditional indicia of such a relationship as set out in Frame v. Smith, [1987] 2 SCR 99 (i.e., the ability… Read more

WESA- Forcing the Executor to Act & Rule 25-11

Forcing Executor to Act. Rule 25-11 of WESA permits ‘a person interested in the estate’ to use a Citation to compel the named executor to apply for probate or be deemed to have renounced. This is an important tool in the arsenal of estate litigators… Read more

Signing a Trustee Release

Anyone practicing law in wills and estates, or who has inherited monies, will be familiar with being required to sign a Trustee Release before the funds are disbursed to the beneficiaries. In BC, it is simply the way business is conducted, and it saves a… Read more

Liability of Trustees

Liability of Trustees

Daum v Clapci  2016 BCCA 176 recently discussed the liability of a trustee for failing to properly insure a hotel that burned  stating inter alia. The test for liability is essentially one of honesty and reasonable man prudence in administering the estate affairs as if… Read more

Executor Cannot Use Estate Funds To Defend Personally

Executor Cannot Use Estate Funds To Defend Personally

In a Wills variation claim ( now section 60, WESA) an executor cannot use estate funds to defend him or herself if a beneficiary, and may  use reasonable estate  funds to defend the claim but only in the capacity of executor and not beneficiary. In… Read more

Executor Removed For Delay and Disdain

Re Dirnberger Estate 2016 BCSC 439 removed an executor who had failed to settle and distribute a simple estate for more than four years and showed disdain and hostility towards his sister the other  major beneficiary. The delay and behavior constituted an inability to act due… Read more

Passing Over – Removing An Executor

Special circumstances sometimes occur where it is appropriate for the Court to Pass Over the named executor in favour of another  which effectively removes the named executor In Re Thomasson Estate, 2011 BCSC 481 the court Passed over the named executor by reason of personal conflict… Read more

S. 132 WESA – Special Administrator

S. 132 WESA ( Wills, Estates, Succession Act) allows the Court to appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances ,the court considers it appropriate to do so. The appointment can be conditional or unconditional and… Read more

Pre Taking Executors Fees Is Breach of Fiduciary Duty

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