League and Williams Lawyers

Tag: executor

  • Dying without a Will (Intestate): Who Acts as Executor?

    Dying without a Will (Intestate): Who Acts as Executor?

    If someone dies intestate (without leaving a valid will), the courts determine the estate’s distribution and the executor of the estate. In a past blog post, we discussed how an estate is distributed when someone dies intestate. In this post, we’ll identify who can be appointed executor of an estate when someone dies without leaving a valid will.

    The job of an executor can be time-consuming and stressful, but it is highly important. The executor is crucial to the correct administration of an estate. Some of the responsibilities of an executor include planning funeral arrangements, locating all of the testator’s assets, liquidating assets for distribution, filing tax returns, paying any debts owed, and distributing the estate. When the deceased does not leave a valid will, the complexity of these tasks can increase as the executor does not have specific directions to follow. In appointing an executor, the courts must be sure that the person will take the job seriously and handle the estate as the testator intended.

    Executor Priority List

    When no one applies to administrate an intestate estate, the Public Guardian and Trustee can take on the duty.

    For the courts to appoint someone as executor of an intestate estate, interested parties must apply. The person with the highest priority on the list described in the Wills, Estates and Succession Act (WESA) will become the executor.

    Section 130 WESA

    As described in section 130 of WESA, the courts will use the following order of priority:

    1. The spouse of the deceased person or a person nominated by the spouse;
    2. A child of the deceased person having the consent of a majority of the children of the deceased person;
    3. A person nominated by a child of the deceased person if they person have majority consent of the deceased’s children;
    4. A child of the deceased person not having the consent of a majority of the deceased person’s children;
    5. A successor other than the spouse or child of the deceased person, having the consent of a majority of the other successors including the successor who applies for a grant of administration;
      • A person, other than the spouse or child of the deceased person, nominated by a successor of the deceased if that person has the consent of a majority of the other successors, including the successor who nominated the person to apply for a grant of administration;
    6. An intestate successor other than the spouse or child of the deceased person, not having the consent of a majority of the other successors, including the successor who applies for a grant of administration;
    7. Any other person the court considers appropriate to appoint, subject to the Public Guardian and Trustee’s consent.

    Executor Priority in Practice

    In simple terms, the order of priority goes: the spouse, a person nominated by the spouse, a child with majority consent, a person nominated by the children, a child without majority consent, a successor of the intestate estate and lastly, any other interested party. ‘Interested parties’ can include registered professionals such as lawyers and accountants in these circumstances.

    For example, if a person dies intestate without a spouse, but with three children (two daughters and one son).

    While the executor order of priority is clear if one dies intestate, it’s always best to write a valid will naming exactly who you want to be named executor of your will. If you need help drafting your will, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Removal of a Badly Behaving Executor in BC

    Removal of a Badly Behaving Executor in BC

    As a beneficiary of a will, it can be frustrating to sit helplessly waiting while the will’s executor fails to administer the estate as expected. Unfortunately, executors sometimes cause intentional delays, are incompetent in their administration, or even abuse their powers to commit theft of estate assets. When this happens, the suffering falls on the beneficiaries – the value of estate assets changes over time, accumulated maintenance costs deplete the estate’s value, and the distribution of assets doesn’t always happen in a fair and timely manner. In these situations, beneficiaries may be able to seek removal and replacement of the executor.

    Legal Grounds for Executor Removal

    According to the judgement in Nieweler Estate (Re) (2019), there are four categories of conduct that will warrant a removal of an executor:

    1. Endangerment of the trust property (estate);
    2. Dishonesty;
    3. Incapacity to execute the duties; and
    4. Lack of reasonable fidelity (good faith).

    The case of Radford v. Wilkins (2008) exemplifies the process through which the courts will change an executor. The factors that are considered when determining whether or not to remove an executor are:

    • The testator’s choice of executor is not to be lightly interfered with,
    • Clear necessity for removal in the interest of the estate’s administration must be established,
    • Removal must be the only reasonable course to follow,
    • Removal to be guided in the interest of the welfare of beneficiaries,
    • Non-removal must likely prevent proper execution of trust, and;
    • Removal cannot be not intended to punish past misconduct.

    Reasons for Executor Removal

    The courts will always hesitate to remove an executor because the testator specifically appointed them as part of their last wishes. However, when it is necessary to remove an executor to protect the beneficiaries’ welfare, the courts will issue an order. The courts view executor removal as a last resort option. Any interested party (someone with a legal stake in the estate) can make an application to remove the executor if they fail to fulfill their duties. Among other reasons, some of the most common grounds for executor removal include undue delay, refusal to act, and fraudulent behaviour.

    Common Grounds for Removal

    If the executor cannot reasonably explain the delays, the Courts can remove them from their position.

    When an executor is actively working to fulfill their duties but experiences an unreasonably explainable delay. Refusal to act by an executor is when they are completely refusing to advance the administration of the estate. An executor’s refusal to act is commonly purposeful and rarely justifiable, especially since executors can renounce their responsibilities at any time.

    If an executor behaves fraudulently in relation to the administration of the estate assets, it will also result in their removal. Executors also must release a full account of everything that went into and out of the estate to its beneficiaries. If the beneficiaries don’t agree with the accounts, believing that there may have been fraudulent activity or a miscalculation of estate assets involved in the accounting, they can have the account reviewed by the courts in a passing of accounts.

    An Example from Caselaw

    In the case of the Kajaks Estate (2016), the executor had failed to administer and distribute the estate after 9 years following the testator’s death. The executor was constantly delaying the process in an attempt to coerce the beneficiaries to agree to change the will to benefit the executor more substantially. It was evident to the court that not having received their portions of the estate for 9 years was impacting the welfare of the beneficiaries. Further, the executor demonstrated a lack of reasonable fidelity as there was no reasonable explanation for these delays. The courts granted an executor removal on these grounds so the estate administration process could move forward.

    When The Courts Won’t Grant Executor Removal

    The Canadian common law principle of the executor’s year is a general guideline for executors, advising that the administration process should be complete within a year from the testator’s death. During this year, we expect interested parties not to interfere because the administration process might take a long time, depending on the complexity of the estate plan. During the executor’s year, the courts probably won’t recognize any claims against the executor. However, after the first year, people can raise claims for removal due to undue delay. The executor’s year essentially gives the executor a grace period, but it’s not legally enforceable

    Ways Forward for Beneficiaries

    Conflicts of interest regarding executorship are generally not sufficient grounds for executor removal. In fact, it’s very common for the executor to be a beneficiary of the estate themselves. Beneficiaries expect the executor to act objectively, ensuring their personal interest in the estate doesn’t impact the estate administration process. Any arguments or tension which may arise between executors and beneficiaries are also not grounds to remove an executor. By law, the executor does not need to be friendly with the beneficiaries; they simply have to administer the estate in a timely manner, with the best interests of the beneficiaries at mind.

    It is often easier and faster to avoid executor removal during the estate administration process, however, removal is sometimes the only option in cases where the executor refuses to take action or causes undue delay. If you’re a beneficiary who is suffering at the hands of an executor, contact an experienced estate lawyer today to begin solving the problem sooner rather than later.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Executor Passes Away, Who Finishes Administering the Will?

    Executor Passes Away, Who Finishes Administering the Will?

    When a will writer dies, the executor named in their will handles the administration of the deceased’s estate, ensuring the estate is distributed as intended. This can be a lengthy process, especially when executors are handling large, complex estates. In some cases, the executor passes away before they’re able to finish the estate’s administration. When this happens, what happens to the original will writer’s estate? Who is responsible for finishing the estate administration? The Wills, Estates and Succession Act (WESA) provides guidance on who becomes responsible for the remaining administration of the estate.

    The Executor’s Executor Administering Both Estates

    As described in s.145 of the Wills, Estates and Succession Act (WESA),

    “If a deceased will maker was an executor of a person who died before the will maker, the executor of the deceased will maker has all the rights, powers, rights of action and liabilities of the deceased will maker with respect to the estate of the deceased person.”

    This means that the executor of the deceased executor’s will becomes the executor of both wills. For example, Terry writes a will naming Grace as his executor. Terry passes away and Grace begins administering Terry’s estate. Before completing the administration, Grace also passes away. In Grace’s will, she named Paul as her executor. After Paul has been granted probate on Grace’s will, he is to administer her estate. Further, Paul must finish Grace’s duties as Terry’s executor and administer the remainder of Terry’s estate. In the end, Paul is left administering both estates.

    Executor Died Without a Will

    Executors are able to refuse executorship before they begin administration.

    Using the same example as above, let’s imagine that Grace never wrote a will, hence she doesn’t have an executor who will take on the role of both hers and Terry’s executor. In this case, somebody must apply for a grant of administration from the courts to finish Terry’s estate administration. As for Grace’s estate, she dies intestate. For more information, read our blog on who acts as executor when someone dies intestate.

    Should multiple people apply to become Terry’s estate administrator, s.131 of the WESA specifies the following order of priority of who will take on the role:

    1. A beneficiary of the will who has majority consent from all of the beneficiaries.
    2. A person nominated by the beneficiaries who has majority consent from all of the beneficiaries.
    3. A beneficiary of the will who has minority consent from all of the beneficiaries.
    4. Any person the courts and the Public Guardian and Trustee consider to be appropriate.

    To finish the application for the grant of administration, after applying for the grant they must remove the deceased as the executor and finally be granted probate as the new executor. From there, the new executor can finish the estate administration.

    Executor Died Before the Will Writer

    If the executor dies before the will writer, there is a different course of action in determining the executor. Since the estate administration hasn’t started yet, the alternate executor named in the will can take over, or the will writer can appoint a new executor. Will writers are able to name multiple alternate executors in case the primary executor is unable to or unwilling to take on the role. If there is no alternate executor named in the will, then a grant of administration must be obtained from the courts.

    To avoid having an executor who you didn’t intend to administer your estate, we recommend naming alternate executors in your will. If you need assistance preparing your will, contact an experienced estate lawyer today. We will help to ensure your estate is handled exactly as your expecting, without any unexpected executors stepping in.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

    Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

    Beneficiaries, spouses and children have the right to receive a copy of a testator’s will, regardless of the executor’s opinion. When executors refuse to provide a copy of the will, beneficiaries can issue a subpoena. According to part 25 of the Supreme Court Civil Rules,

    “A person may apply for a subpoena to be issued to require a person to deliver to the registry one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or notarial copy of such a document.”

    To use a subpoena to request a copy of a document, you must have a valid reason.

    The Subpoena Process

    To clearly illustrate the process, let’s look at an example. A woman, Ann, is one of the beneficiaries of a will. Todd is the executor. Todd is in possession of the testator’s final will.

    a)      Failure to Deliver a Copy of the Will

    A subpoena gives the executor a deadline of 14 days to provide a copy of the will to the courts.

    Ann needs a copy of the will to see how her inheritance will impact a certain tax benefit. Since she is a beneficiary of the will, she requests that Todd provide her with a copy. After multiple direct requests to Todd for a copy of the will, he fails to deliver one to her. There could be many reasons that Todd is choosing to do this. However, these reasons don’t legally justify his refusal to provide a copy of the will. Ann decides to issue a subpoena to the courts to enforce Todd to act on his responsibility as the executor.

    b)      Issuing a Subpoena

    The person who requests access to the document needs a valid reason, and the person who receives the subpoena must have previously refused to provide that document. Applying this to the example above, once the courts issue Ann’s subpoena, she serves Todd with the documents directly and in-person.

    Todd has three options after receiving the subpoena:

    1. Comply with Ann’s request by giving the courts a copy of the will;
    2. Explain in front of the courts how he is not in possession of the will anymore; or,
    3. Challenge the subpoena claiming that it’s unnecessary to comply with it.

    c)      Enforcing the Subpoena

    If Todd has not done anything after 14 days, Ann can involve the police to enforce the subpoena. Ann must provide proof that the subpoena was served, proof that she requires a copy of the will, and a copy of the court’s subpoena issuance. Now, Todd can be apprehended and brought before the courts where he could be detained in custody. Todd can also be ordered to pay any costs that arose to Ann because she was not given a copy of the will upon her valid request.

    If you’re a beneficiary who is not receiving a copy of the will after multiple requests, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.