Choosing an Executor: Lessons from a Family Court Case

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Choosing the right person to handle your estate after you pass away is one of the most important decisions you’ll make. However, it’s also one of the trickiest.

The Challenge of Choosing an Executor

In a perfect world, we would all be able to recruit an enthusiastic, financially savvy, trustworthy, and impartial individual with personal knowledge of us, our assets, and our beneficiaries to oversee the administration of our estates. But in reality, most of us will have to make some compromises and go for the best available option.

Default Choice: Family Members

For many parents, the default choice to act as executor is one of their children. However, depending on the family dynamics, it can be troublesome to hand the responsibility to someone with such a vested interest in the estate, as one recent Supreme Court of B.C. case demonstrates.

Case Study: Stoker v. Young

In Stoker v. Young, the oldest daughter of the deceased is challenging her mother’s will, which shared almost all of the estate between her two much younger sisters, including one appointed to act as their mother’s executor.

Family Dynamics in the Case

According to the decision, the older sister’s relationship with her siblings was strained by their age difference — they are at least a decade younger — and there were disagreements over the relative involvement.

Court’s Decision

The judge in the case ruled that there were enough question marks over the deceased’s capacity, allegations of undue influence, and the unequal division of the estate to require proof of the will in solemn form, ordering a licensed insolvency trustee to take over administration of the estate pending the trial.

Alternative Executor Options

If you are considering appointing one of your beneficiaries as your executor, here are three alternative options to consider that may inject a little more independence into the administration of your estate.

1. Appoint a Trusted Friend

A close friend of the testator often possesses many of the same executor-friendly qualities as one of their children, except that they don’t have a direct interest in the outcome of the estate.

Pros and Cons

However, their intimate knowledge of the estate and its key players can be a double-edged sword. The longer a beneficiary’s history with the estate trustee, the more likely they are to throw around allegations of bias or favouritism based on interactions in the distant past.

The job of executor can be challenging enough in the most straightforward of cases, so if you’re expecting significant tension among your children after you’re gone, an old friend may not thank you for casting them in the role of referee while they fight it out over your estate.

2. Appoint a Corporate Trustee

Appointing a professional executor, such as a trust company — which is often associated with one of Canada’s major banks — will eliminate any doubts over impartiality or bias in the administration of your estate.

Cost Considerations

However, that certainty will come at a price, since corporate trustees typically charge a fee in the region of five per cent of all the assets that flow through the estate.

Still, this could end up being a bargain rate if it stops any budding disagreements among beneficiaries before they can blossom into full-blown estate litigation. In the end, the beneficiaries suffer most from the waste of time and money resulting from an ugly fight in court, since the costs typically come out of the estate itself, depleting assets that they would otherwise share.

Professional executors are typically able to rise above whatever family drama has gone on in the decades leading up to the testator’s passing.

The more valuable or complex your estate, the more likely an investment in a corporate executor is to pay off, since the professionals in their team will have experience dealing with the complications that come with assets such as a family business, foreign property, antiques or art.

3. Appoint Multiple Executors

One way to alleviate concerns over an executor’s impartiality is to appoint a second (or third) co-executor to act as a check on them. Candidates for the co-executor position could include another sibling, a friend, a professional, or some combination of the three.

Benefits and Risks

A bonus of this arrangement is that splitting the duties among multiple executors can also lighten the role’s considerable load.

Still, you should consult a lawyer to make sure your estate is appropriate for the appointment of a team of trustees, since there are risks to consider, including the possibility that estate administration could grind to a halt because of a disagreement between them.

Conclusion

If you’re facing this important choice and would like to discuss your options, schedule a consultation with one of our experienced estate lawyers. We would be happy to help you.

*This post is not intended to be legal advice and should not be taken as such. Please contact McConnan Bion O’Connor & Peterson if you have any questions regarding this post or require assistance or legal advice regarding estate planning and administration.