Re the Estate of Lillian Lowe 2002 BCSC 813 is an example of where the executors claim for fees was denied entirely by the court for inter alia her critical failure to supervise the professionals that she retained.
The general principles relating to remuneration of executors were not disputed. Executors should be fairly compensated for the work that they undertake -Baker v Baker (1995) BCJ 1039.
Executors are required simply to do their best to manage the affairs of the estate as one would expect a person of ordinary prudence to do. Parish v Parish estate (1999) 26 ETR (sd) 276 BCSC.
In the Lowe decision, the matter of the executors fees was referred to the registrar to hold an inquiry, determine the facts, and report them to the judge, so that the judge could hold a hearing and determine what is the appropriate executor’s fees to order, if any, after taking into account the factors set out in the relevant relevant legislation.
The court, however, has authority to interfere with the findings of the registrar and vary the recommendation of the registrar as it sees fit. Larson v Larson (1993) 80 BCLR (2d) 303.
The court is not hearing an appeal from the registrar’s conclusions and recommendations, the report is to be considered, but even if there is no error in law or principle discovered in the report, the discretion as to awarding fees and the imposition of costs is the courts alone- Morgan v Edwards estate (2001) 86 BCLR (3d) 19 BCCA.
In the Lowe decision the executor was a lawyer and the court found that she failed to administer the assets of the estate properly, including:
- despite repeated requests by the beneficiaries for a copy of the will, no copy was received for a period of one and a half years;
- unacceptable delays were involved in obtaining an order presuming the death of the deceased, that resulted in loss of orphans benefits under the Canada pension plan;
- the executor did not provide a proper accounting despite requests that she do so. The court application was required to produce the accounting which resulted in the beneficiaries incurring legal fees;
- there was a delay in obtaining bonds in the name of the deceased from the safety deposit box of over three years;
- the account of the executor’s first fees does not provide any detail. It only showed fees calculated on a percentage basis, and no time records were ever produced;
- the executor charged the maximum 5% on the capital of the estate;
- executor refused to produce revenue Canada notices of assessment until she was ordered to do so by the court. There was apparently no valid basis for her refusal and the documents contained relevant information.
The court found that the executor failed to supervise the activities and monitor the work done by the professionals that she employed Wagner v Van Cleeff (1991) 5 OR (3d) 477.