Last month a fellow contributor, Justin de Vries, blogged about the challenges of choosing the right executor for one’s estate [ Trials and Tribulations, Oct. 12, 2010.]
The right executor can be determined by certain factors: Is the possible executor up to the job from a skills, age and competency perspective? Are there difficult dynamics within the family and will a family member be impartial ?
Justice Lederer addressed the executors’ duties in a decision released on September 15, 2010: Watson Estate v. Beatrice Watson-Acheson Foundation, 2010 ONSC 5043. The testator left an estate of $7 million and appointed a person who was not up to the job. The executrix acted as a trustee when she was in a position of conflict with the estate, had acted in a manner which was not consistent with the terms of the will and allowed herself to benefit from the position she held.
A testator runs the risk of leaving an estate in the hands of someone whose lapse of judgement can create a minefield of legal and accounting issues. A decision of October 15, 2010 by Justice Lofchik – DeLorenzo v. Beresh, 2010 ONSC 5655 – provides an example of litigation between the estate trustee who also happened to be a solicitor and the beneficiaries. In that case, the legal fees of the estate trustee were improperly paid by the estate. On this issue, the Court held that it would be inequitable to have the estate trustee pay his legal costs from the estate funds and require the applicants, whose funds are tied up in estate, to bear their own legal costs while the litigation is proceeding.
Thank-you for reading; Jonathan Morse