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

Party Cannot Take Tax Benefit For One Purpose and Deny It For Another

In Rosenthal v Rosenthal, 1986 CarswellOnt 288 (HCJ), it was held that an individual cannot take a position to obtain a tax benefit and then deny that position to obtain a different benefit. At para 51 of Rosenthal, the court noted that “it is being… Read more

The Prudent Investment Standard For Trustees

The Prudent Investment Standard For Trustees

Miles v Vince 2014 BCCA 290 allowed an appeal and removed a  trustee for failure to abide by the Prudent Investor Standard expected of a trustee. The Trustee had used the funds from an insurance trust for a speculative real estate investment The Prudent Investor… Read more

The Resealing of a Grant of Probate From Another Jurisdiction

Property of the deceased in each jurisdiction he or she owned assets will require a resealing of the grant of probate. When the deceased person owns assets requiring probate in more than one jurisdiction, it is necessary for the executor to obtain a grant of… Read more

Trustee Must Follow Terms of the Trust

It is trite law that a trustee is obliged to follow the terms of a trust and has no discretion to deviate from the trust’s  terms. In McLeod v McLeod BCSC 2014, Butler J. found an executor  to have breached the terms of a trust by… Read more

Court Rejects Removal of Executor – False Allegations Lead to Special Costs

False allegations of misconduct, including fraud, based on mere suspicion  by a beneficiary, were not sufficient to remove an executor for wrongful conduct, and instead brought rebuke against the complainant in the form of an award of lump sum special costs against him. In Watson… Read more

The Executor’s Duties and Powers Under a Will

  Reznik v Matty 2013 BCSC 1346, a wills variation action in BC, has a very succinct summary of the executor’s duties and powers of under a will.     The trial in Reznik was inter alia related to a Wills Variation action where 4… Read more