Executor Must Treat All Beneficiaries In Good Faith

Executor Must Treat All Beneficiaries In Good Faith

An executor is in a fiduciary relationship and must treat all beneficiaries fairly and in good faith. Brighter v. Brighter Estate (1998), 1998 CarswellOnt 3113 (Ont. Gen.Div.): The executor has no right to hold any portion of the distributable assets hostage in order to extort… Read more

Executors/Trustees Must Care For Estate Assets

Executors/Trustees Must Care For Estate Assets

The law is clear that a personal representative (executors, trustees, and administrators)  has a duty to care for the assets of the estate: Stanger v. Royal Trust Co., [1947] 1 W.W.R. 538, [1947] 2 D.L.R. 534 (Sask. C.A.). Personal representatives undertake their duties in furtherance… Read more

All About Executors and Administrators

All About Executors and Administrators

INTRODUCTION It is perhaps trite to state that the role of the drafting notary or solicitor is simply not to fill in the blanks and record the testator’s instructions, including his or her choice of executor, but instead to actively advise and draw to the… Read more

Trustees for Infants Versus Guardians

Trustees For Infants versus Guardians

Leniuk Estate 2016 BCSC 159 held that a guardian for an infant is not permitted to be appointed the trustee to receive and hold in trust on the infant’s behalf all of the property to which the child is entitled to receive in place of… Read more

Executor Personally Liable For Court Costs

Executor Personally Liable For Court Costs

Craven v Osdacz 2017 ONSC 4396 held an executor of an estate personally liable for costs totalling about $150,000 for reckless and unreasonable behavior that amounted to reprehensible for opposing a plaintiff’s court action for no valid reason other than to frustrate and delay the… Read more

Trustee Cannot Be in Conflict With Duty

Trustee Cannot Be in Conflict With Duty

Equity will not allow a person who is in a position of trust to carry out a transaction where there is a conflict between his or her duty and his or her interest. It is a rule of universal application that no trustee shall be… Read more

Removal of an Executor Summarized

Removal of an Executor Summarized

I am frequently asked about the removal of an Executor that beneficiaries complain about and the following briefly summarizes when and if the court will act to remove and replace an executor. Lord Blackburn stated in Letterstedt v. Broers (1884), [1881-85] All E.R. Rep. 882… Read more

Executors: Specific Bequests and Fees

Executors: Specific Bequests and Fees

Janke, Re 1985 CarswellBC 2298 dealt with the presumption that when an executor is left a specific bequest it is in lieu of fees. This presumption applies only where the bequest is made to the executor in his capacity as executor and yields to very… Read more

Executor Found Liable For Lost Rents

Executor Liable For Lost Rents

Executors sometimes let friends or relatives live in estate property and not collect fair rent. The executor can be personally liable for lost rent. Where an executor permits tenants to live rent-free in estate property and the court is satisfied that the property was capable… Read more

Trustee Act: Trustees Breach of Trust Excused

Trustees Breach of Trust Excused

Section 96 of the Trustee Act allows the court to excuse a trustee for negligence or breach of trust when handling estate assets if the trustee acted honestly and reasonably. Section 96 states as follows: 96. If it appears to the court that a trustee,… Read more

Removal of Executor/Trustee For Conflict of Interest

Removal of Executor/Trustee For Conflict of Interest

As a BC estate lawyer, I am often asked to remove an executor/trustee. Re Ching 2016 BCSC 1111 is one of several cases where the courts have indicated their reluctance to remove an executor for a perceived conflict of interest. The executor/trustee was however removed… Read more

Removing and Replacing Executors and Trustees

This video is on removing executors and trustees. Personally, I think being an executor is like being a fire hydrant on a street of dogs. You can never, ever get enough appreciation. Unfortunately, it seems to attract a lot of heat. Now there are good… Read more

Use of Multiple Wills Approved

Use of Multiple Wills Approved

In re: Berkner Estate 2017 BCSC 619 the Court approved the use  of Multiple Wills in estate planning.  The applicant submits that a person is entitled to have more than one valid will. As an example, multiple wills may be used when a will maker… Read more

Executors Entitled To Indemnification For Fees and Expenses

Executors Entitled To Indemnification For Fees and Expenses

Re Collett Estate 2017 BCSC 473  confirmed the well settled law that executors at entitled to  indemnification for properly incurred fees and expenses in carrying out their administration of an estate. Jackson et al v. King et al, 2003 BCSC 328 at para. 12: As Executors,… Read more

Trustee Fee For Care and Management of Estate Assets

Trustee Fee For Care and Management of Estate Assets

Re Pedlar 1982 BCJ 1553 deal with the criteria for an estate trustee fee for the care and management of estate assets not to exceed .4% of the average market value of the estate assets. It was recently followed in Collett Estate 2017 BCSC 473… Read more