When someone passes away, their appointed executor is tasked with managing and distributing the estate and its assets according to the deceased’s will. The executor is placed in a position of trust and responsibility to ensure the deceased’s final wishes are honoured, including parsing out the rightful inheritance and gifts to beneficiaries as well as eliminating any remaining debts to financial institutions.
Unfortunately, not all executors fulfill their duties ethically. In cases where ethics and laws are violated, beneficiaries can face serious financial and emotional consequences. Challenging an executor may become necessary if you believe they have not lawfully and ethically adhered to the will they were tasked with overseeing. Estate litigation lawyers can assist with this process, which can be difficult to contest alone.
Examples of Executor Misconduct
Executor misconduct is characterized as any actions that either harm the interests of the estate and its beneficiaries or conflict with the executor’s legal duty of care and loyalty to the deceased and their final wishes. This includes:
- Mismanaging estate assets, such as misappropriating funds to use for personal gain instead of their intended purpose.
- Failing to distribute assets to beneficiaries according to instructions in the will and in accordance with the law.
- Failing to provide accurate accounting records of all transactions regarding estate assets.
- Failing to manage estate debts and liabilities to appropriate parties.
- Having a conflict of interest or breaching fiduciary duties, such as favouring one beneficiary over another or favouring themself over beneficiaries.
Challenging an Executor
In BC, a grant of probate or grant of administration is required to validate a will. These doctrines essentially allow the named executor to carry out the terms of the will. If an executor has conducted themselves unlawfully or unethically when dealing with matters of the will, beneficiaries have two years from the date of the grant of probate or administration to bring claims against them. However, sometimes exceptions are allowed. For instance, an executor may have been able to hide their misconduct beyond the standard limitation period. In these and other similar circumstances, contesting an executor may be allowed after the two-year timeframe.
The Wills, Estates and Succession Act (WESA) also allows a person with interest in the estate, such as a listed beneficiary, to apply to remove or pass over an executor. This means it’s possible to apply for a grant of probate or administration to appoint a person with lower priority to serve as executor. This can be an option for beneficiaries, especially if they have concerns about the named executor’s trustworthiness even before the executor begins to carry out the will’s terms.
How to Prove Executor Misconduct
If you suspect an executor of misconduct, it’s vital to gather evidence to support your claims. This includes collecting:
- A copy of the will
- Financial records related to the estate (including those the executor is legally required to provide)
- Communication records with the executor
- Receipts or other documentation of questionable transactions
- Witness testimonies
Estate litigation lawyers like those at Stephens & Holman can help you gather evidence and build your case if you believe misconduct was committed. Get in touch with our team today for your free consultation.