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

Damages in Equity for Breach of Trust

Damages For Breach of Trust

Huff v Price 1990 (BCCA) 51 BCLR 282 held that the amount of damages in equity  in an action for breach of trust will be equal to the highest price at which the property of which that person was deprived could have been sold in… 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

Fiduciary Duties of Corporate Directors

Fiduciary Duties of Corporate Directors

Ascent One Properties Ltd v Liao 2017 BCSC 1017 dealt with an aborted real estate development project that alleged inter alia a breach of fiduciary duties by a corporate director and officer. The case outlines the law relating to the fiduciary duties owed by a… Read more

Executor/Trustee Must Decide and Not Delegate

Executor/Trustee Must Decide and Not Delegate

While a trustee or executor may retain an agent to perform a particular duty or give them advice, if the will permits delegation of such duties, the executor, trustee must ultimately make the decision about the course of action. The leading decision on the matter… Read more

Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney. Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia. The Court stated inter alia as follows: 18      The applicable law with… Read more

Passing Over an Executor

Passing Over an Executor

Passing over an executor utilizes essentially the same legal criteria as removing an executor except it occurs before the named executor starts to act in the representative capacity. Re Thommasson Estate 2011 BCSC 481 removed a named  executor who was not a beneficiary but his siblings… Read more

Statute Barred Debt to Estate Deducted From Beneficiary

Statute Barred Debt to Estate Deducted From Beneficiary

Re Johnston Estate 2017 BCSC 272 upheld the rule in Cherry v. Boultbee  which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing… Read more

Disinternment aka Exhumation

Disinternment aka Exhumation

Disinternment , also known as exhumation of human remains is provided in the provision of the Cremation, Internment and Funeral Services Act SBC 1974. At common law a duty is imposed upon an executor to see that the deceased is buried in a manner befitting his… Read more

Executor Can Waive Solicitor Client Privilege

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing. Mr. Haas died on February 15, 2016, leaving a will naming his only child,… Read more

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

No specific terms of payment were ever agreed between the parties and the defendant was paid the sum of $37,850 over approximately 5 years. No evidence of mental incapacity was led at trial, although the deceased estate did become incompetent at some point during those… Read more

Fiduciary Employee - Employer

Fiduciary Duty: Employee For Employer

The law of fiduciary duty is very relevant to estate litigation cases but is also prevalent in almost any other claim where equity is involved, including an employee can be found to be a fiduciary for the employer. M A Concrete Ltd v Truter 2016… 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

Fiduciary Duty

Attorney’s Fiduciary Obligations Increase When Donor Incapable

Turning to the law, as one might expect, the fiduciary obligations of an attorney become elevated once the donor of the power becomes incapable. This is described by the Ontario Court of Appeal as follows (Richardson Estate v. Mew, 2009 ONCA 403): In Banton [Banton… Read more