Estate Planning

The Executor: Whose Choice?

By Hull & Hull LLP

Testators choose their executors.  The choice of executor is commonly assumed to be a very personal choice predicated on trustworthiness.  But in the face of this assumption, can the beneficiaries of an estate ever agree amongst themselves to oust an executor in the absence of any recognized basis for removal?  A pending case in the U.K., as reported in The TimesOnline, addresses this question.

A firm named Will Drafters in the U.K. was named executor in the Will of a deceased.  The beneficiaries named in the Will are not happy with the compensation Will Drafters is entitled to under its contract with the testator.  The beneficiaries have brought this so-called "test case" to see if the Court will order the removal of the named executor based simply on the fact that all beneficiaries seek its removal in favour of another company, Final Duties, which will apparently charge a lesser rate of compensation.  Not surprisingly, Will Drafters takes the position that they contracted with the testator for their services at an agreed rate of compensation and ought not to be removed. Certainly there is no indication that there are any of the factors that give rise to the removal of an executor (in Ontario, this would proceed under s.37 of the Trustee Act)

Quite apart from the legal issue of when the Court ought to remove an executor, the case has sparked a debate respecting whether "will-writing companies" (as they are called in the U.K.) such as Will Drafters and Final Duties, ought to be regulated. As the Times notes: "The only will-writing association to offer accreditation — the Fellowship of Professional Willwriters and Probate Practitioners — says that its research shows that two thirds of people wrongly thought the willwriters they used were all trained solicitors. A recent report on regulation of legal services by Lord Hunt of the Wirral expressed concern about the 'fringe legal market' in will-writing, probate and claims handling."

On a final note, to all who read yesterday's blog, please see this link for a revised version of that blog now posted in its place on our website

David M. Smith

David M. Smith - Click here for more information on David Smith.

Full post as published by Toronto Estate Law Blog on February 04, 2010 (boomark / email).