Wills Directives to Employ Certain Lawyers, Accountants and the Like are NOT Binding

Wills Directives

It is fairly common for testators to include a provision in a will that the executor should use the services of a particular lawyer or accountant or other such professional, in assisting the executor in the duties that will be performed by the executor.

I would venture to opine that in most of these circumstances it is not a contentious issue and the directive is followed.

However, that can also not be the case, and the chestnut decision of Foster v. Elsley 30 W.E. 596 dealt with that very issue as far back ago as 1881.

In that the decision that there was a testamentary directive to employee a certain lawyer to perform the legal services required by the executor.

The court held that such a directive is not binding upon the executor, but is simply an advisory provision which the executor may disregard of he or she chooses to do so.

The executor is personally liable for proper the administration of the estate.

The position of executor is one where the he or she stands in the” legal shoes” of the deceased so to speak, and it being such a responsible duty, the courts do not want to saddle the individual discretion of the executor to choose an alternate professional, other  than the one directed to be used in the will.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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