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 slight indications of a contrary intention on the part of the testator.

Macdonnell, Sheard and Hull on Probate Practice, 2d Ed, at p.329. This quotation was also quoted by Mr. Justice McKay in Re Ross, [1976] 3 W.W.R. 465 at page 466:

In addition to those cases in which the will contains an express provision for the executor in lieu of compensation, there is a presumption that when a legacy or annuity is left to an executor, it is intended to be in lieu of the compensation to which he would otherwise be entitled. But this presumption, like the presumption that such a provision is conditional upon the executor’s proving the will, applies only when the bequest is made to the executor in his capacity as executor and yields to very slight indications of a contrary intention.

In Canada Permanent Trust Co. v. Guinn 1981 CarswellBC 327, the respondent co-executor had been given a substantial legacy under the will, and had had minimal duties, as the bulk of administration was done by the trust company.

The questions submitted were whether the legacy was intended to be in lieu of executor’s compensation to the respondent, and, if not, how to divide the compensation.

The Court held that the Respondent was entitled to share of compensation.

The presumption that a legacy was intended to be in lieu of an executor’s compensation was not a strong one, and would yield to very slight evidence of contrary intention. The indications in the will were that the testator intended the respondent to take beneficially.

Extrinsic evidence was allowable to rebut or support a bare legal presumption. The extrinsic evidence allowed indicated that the respondent was to take beneficially, not as executor.