Executors in Wills Variation actions is a necessary party and should remain neutral in his or her capacity as executor.
Ewasew v Ewasew (1996), 11 ETR (2d) 309 (BCSC)held inter alia that when the executor is not also a beneficiary, his or her role at court, if any, is generally to provide necessary background respecting the assets and administration.
As such, the standard costs order is that the executor’s costs should be paid from the estate on a special costs basis: Campbell v Campbell, [1986] BCJ No 1221 (SC).
Of course, an executor is frequently a beneficiary too, which can dismantle the neutrality and raises issues pertaining to costs. When wearing the hat of beneficiary as well as executor, the executor should be careful to keep separate legal accounts for each role, and must also be prepared to address entitlement to costs separately. In Ewasaw, supra, the court noted at paras 6 and 7:
Where a beneficiary is not also the executrix it is clear that her or his own solicitor’s costs are payable by the beneficiary and not by the estate. The rule should be no different where the beneficiary is also the executrix, but it will be important to break-out whatever part of the costs are attributable to the executrix’s duties qua executrix as opposed to her actions as a defending beneficiary.
When the executrix’s accounts are eventually passed therefore, the Master or Registrar will be directed not to allow as part of the estate accounts whatever of the petitioner’s legal costs were incurred to defend her personal inheritance from attack.
This excerpt was cited with approval by the Court of Appeal in Wilcox v Wilcox, 2002 BCCA 574. In Wilcox, the executors presented a lump sum legal bill of $50,000, and at para 28 the Court of Appeal queried “whether that sum can be justified when the executors’ costs are separated from the [WVA] costs incurred…is a matter to be determined when the executors’ costs are passed”.
The executor as beneficiary should keep his or her loyalties separate too, or risk an adverse costs award. The first loyalty is to the beneficiaries. In Wilson v Lougheed, 2012 BCSC 1166, Madam Justice Ballance awarded special costs for a portion of a trial (and costs for the whole proceeding) against an executor who crossed the line in a highly charged (and publicized) WVA case advanced by his daughter. At para 25 of the costs ruling, Madam Justice Balance wrote:
The law demands that, as executor, Mr. Lougheed comport himself impartially in the WVA Claim. In discharge of his neutral fiduciary role, Mr. Lougheed was expected, at a minimum, to provide the court with an unbiased and accurate information about the date of death assets and liabilities of the estate. He purposefully elected not to do so.
Steernberg v Steernberg 2007 BCSC 953 went further:
23] I agree with Registrar Bouck in Wilcox Estate (Re) where, at 1|56, she describes as false the premise that any services rendered in defending a will are de facto to be borne by the estate. Mr. Justice Bouck in Quirico also addressed the requirement that the executor remain neutral in Wills Variation Act proceedings:
1J15 The primary duty of an executor is to preserve the assets of the estate, pay the debts and distribute the balance to the beneficiaries entitled under the will or, in accordance with any order made under the Wills Variation Act. An executor should not pick sides between the beneficiaries and use estate funds to finance litigation on their behalf under the Wills Variation Act. It is a matter of indifference to the executor as to how the estate should be divided. He or she need only comply with the terms of the will or any variation of it made by a court.
[24] It follows that it is inappropriate to withdraw funds from an estate at the start of the litigation, or throughout the course of the litigation, to fund the defence of a Wills Variation Act claim, as was done in this case, in the absence of a court order or the unanimous agreement of the beneficiaries. A will is defended in the sense used in the case law, where an allegation is made that the will itself is invalid. Examples would be challenges to the will on the basis that the testator lacked capacity or that there was undue influence. In a Wills Variation Act claim, on the other hand, the validity of the will itself is not being challenged and there is, therefore, no need for an executor to “defend” the will.
[25] Nor can it be said that the litigation in this case was caused by the testator. That characterization applies where the testator has left interpretation problems (for example, misnaming a beneficiary) which require a court’s intervention.
[26] There must be an accounting, not only as to the net value of the estate with all the legal fees relating to the defence of the Wills Variation Act claim accounted for (whether they were paid to the defendants’ litigation counsel or counsel for the Executor), but also with respect to income lost by the estate on the funds that ought to have been properly invested, but instead were used for legal fees.
