Vancouver Estate Conflict of Interest Lawyers deal with cases where the executor of a Will is claimed to be biased or have a conflict of interest.
MacLean Law’s estate litigation lawyers often deal with disputes in which children who have been left out of a parent’s apply to change or “vary” the will in order to gain a share of the estate. In that situation the challengers often attempt to force the executor to resign, arguing that the executor is in a conflict of interest because that executor is also a beneficiary under the will and would receive a smaller share of the estate if the challenge is successful. Ou Vancouver Estate Conflict of Interest Lawyers help sort the issues out promptly and fairly. Today senior lawyer, Nick Davies explains the rules.
MacLean Law’s will variation lawyers know there is no presumption the executor is in a conflict of interest and must step aside. Our Vancouver Estate Conflict of Interest Lawyers know the executor must remain neutral with respect to the task an executor is obliged to do. It is not the executor’s job to defend against the attempt to vary the will. The executor’s role in an estate is limited to delivering probate documents, preserving the assets, paying the debts of the estate, providing a financial accounting of the executor’s dealings with the estate and distributing the estate in accordance with the will or any court order. The executor must remain neutral with respect to these tasks and must leave the wills variation dispute the plaintiffs and the defendants to sort out. Provided the executor remains neutral, the executor need not resign. For a case where an executor was not permitted to act in the role see Re Thomasson Estate.
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Vancouver Estate Conflict of Interest Lawyers explains that the role of the executor in a litigated estate was considered in the case of Quirico v. Pepper Estate [1999] B.C.J. No. 2229. In that case, the executor, who was also a beneficiary, argued it was his duty to “uphold the will”. The Honourable Mr. Justice Bouck wrote as follows:
[15] 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.
[16] For all these reasons, the law anticipates the executor will remain impartial between the opposing beneficiaries. Where proceedings are taken under the Act, all the executor need do is appear at the trial if required, and deliver to the court the Letters Probate and financial documents showing the value of the estate. Even this may be unnecessary if the parties agree to admit copies of those documents into evidence without the attendance of the executor.
[17] It follows that the only purpose of Mr. MacKay appearing at the trial as solicitor for the executor was to deliver up the Letters Probate and the Estate Inventory. He could not act in an adversarial capacity against the plaintiff.
Thus, where an executor is also a beneficiary and wishes to defend against the attempt to vary the will the executor may do so provided the executor is careful to scrupulously maintain his or her neutrality with respect to the executor’s tasks. The executor must bear in mind, however, that the range of legal costs that the executor may charge to the estate by the executor is narrow. The executor in his or her role as beneficiary must personally pay their own legal costs associated with the wills variation application.
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The executor may be named as a party in the wills variation litigation but have no interest in participating in that litigation. If the executor files a response in the litigation, they must then comply with the document disclosure obligations in the Supreme Court Civil Rules. The executor can avoid document disclosure obligations by not defending the will variation claim. That strategy might be available where there are other beneficiaries who are not executors who will defend against the attempt to vary the will.
This point was considered in Wang v. Christie Estate, 2014 BCSC 1574 where the Court wrote as follows:
[24] The executor’s position is that a requirement to list documents is inconsistent with the impartiality and neutrality required of the position, and places him in the arena with the litigants.
[25] Further, to impose an obligation to list documents in a variation proceeding will require an executor to inventory the documents of a deceased, an additional burden, or, if delegated to the estate solicitor, additional expense.
[26] It seems to me that the executor is in a position to control that risk, or avoid the burden simply by not filing and delivering a Response to Civil Claim. That is the step, if taken, that triggers the obligation to list documents under Rule 7-1, because that is the step that converts the executor from being a named party as required by Rule 21-6(2) to a “party of record,” as defined in Rule 1-1, and it is as a “party of record,” rather than named defendant or mere party, that the obligation to list documents attaches.
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In summary, our top-rated* Vancouver Estate Conflict of Interest Lawyers want you to understand that where an executor is also a beneficiary in a wills variation proceeding, there is no presumption that the executor is in a conflict of interest and must resign.
The executor must proceed carefully to maintain their neutrality with respect to the administration of the estate. Whether the executor should participate in the wills variation proceeding or wait on the sidelines for the issue to be resolved by others involves tactical considerations which must be carefully considered before the executor becomes engaged in the litigation.
