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The Legal and Substantive Role of the Executor - Episode #154

By Hull & Hull LLP

Listen to The Legal and Substantive Role of the Executor

This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss the legal and substantive role of the executor at the time of death. They focus on the question of who has right and control over the body and refer to the 2001 decision of Sopinka vs. Sopinka.

Feel free to send us an email at hull.laywers@gmail.com or leave us a comment on the Hull on Estates blog.

The Legal and Substantive Role of the Executor - Episode #154

 

Posted on March 18^th, 2009 by Hull & Hull LLP

 

Suzana Popovic-Montag:  Hi and welcome to Hull on Estates.  You're listening to episode 154 of our podcast on Tuesday, March 17^th, 2009.

 

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills.  Now, here are today's hosts.

 

Ian Hull:    Hi it's Ian Hull.

 

Suzana Popovic-Montag:   And I'm Suzana Popovic-Montag and we're pleased to be back on Hull on Estates.  If you want to be heard on Hull on Estates you can participate by leaving us a comment.  You can feel free to e-mail us at hull.lawyers@gmail.com.  

 

Ian Hull:    Or please feel free to visit our daily blog at estatelaw.hullandhull.com.

 

Suzana Popovic-Montag:    So how are you today Ian?

 

Ian Hull:    Just terrific, thank you.

 

Suzana Popovic-Montag:    That's good.  I see you're wearing lots of green on this special St. Patrick's Day.

 

Ian Hull:    Oh absolutely, there's more beer to come.

 

Suzana Popovic-Montag:    That's the spirit.

 

Ian Hull:    So I think what we thought we'd try to do today anyway was to speak about what can be a difficult time when you are appointed an executor and talk a little bit about the legal and substantive role of an executor at the so-called time of death.

 

So what do we do with the body and what is our role as executor?  The one fundamental substantive law point that I always try to make sure my clients understand is that the Will speaks from death.  So it is the governing document and the one that you have authority at the instance of death to proceed with.  With that, of course, gives you the authority but also gives you the curse of liability and obligation as well.  So we can't forget that the Will speaks from death.

 

Suzana Popovic-Montag:    And so, of course, the first issue for someone dealing with a death in the family is to actually locate that Will.  And normally what we'll see is one of the first calls is made to the lawyer for the deceased to the extent that that individual is known.

 

Ian Hull:   And there are other immediate searches that are obvious as well.  Of course, the safety deposit box, the dresser drawer, and all of the conventional spots you'd want to look.  But we always encourage our clients to tell our executors (a) they have the job; and (b) where the Will will be located.

 

Suzana Popovic-Montag:    And the reason that that's so important, Ian, is of course because the executor is the individual who has the authority to decide how to deal with the body once they have that authority vested in them.

 

Ian Hull:    So that role of the executor and one that sometimes is overlooked is this control and custody of the body, so to speak.  What are the first steps, and I want to just say as an aside that there's a great article by Paul Trudelle on our web page.  He spoke not at our last breakfast but the one before, on this topic.  But what is, speaking of the body so to speak, what is the first step an executor's role may or may not revolve around?

 

Suzana Popovic-Montag:    Well Ian, I think what you're suggesting is the funeral arrangements, is that right?

 

Ian Hull:    Yes and the question is, of course, lots of times the executor has nothing to do with the funeral arrangements and it is entirely the role of the family.  But one can't forget that they have the legal and substantive obligation of dealing with the body and that may include the funeral arrangements.

 

Alright, so in terms of case law on this area, the one that we'll put on the show notes is the Sopinka v. Sopinka decision, it's a 2001 decision and it's in the Ontario Court.  And in that case there was a fairly dramatic series of events that touched on the role of the executor.  We'll let you read the case for its facts.  But one of the things that it tried to do anyway was focus on the question of who has rights and control and custody over the body and reminds us under the provisions of the Trustee Act then what can and cannot occur.

 

We're also reminded in that decision, of course, that Section 3 of the Act provides that where a trustee dies, the personal representative of the trustee is capable of exercising the powers of the trust of the deceased.  So in the Sopinka case there was a situation where the appointed estate trustee had died and they had to move quickly and the question of what the rights of the succeeding trustee were, were developed and discussed pretty extensively in Sopinka.

 

Suzana Popovic-Montag:    And as unusual and dare I say morbid as it sounds, Ian, these kinds of fights do happen.  We do see people arguing over how someone's remains should be treated.  Whether, for instance, they ought to be cremated or they should be buried.  And in the Sopinka decision, we saw a struggle between the parent of the deceased and their children.  And it was a very interesting case that I suggest to anyone who's interested in the area to certainly take a look at because the case sets out a number of observations which are important, particularly when you're dealing with these scenarios.  And the first, of course, is the fact that the case underscored that the duty to dispose of the body included the right to actually have possession or custody of the body for the purposes of that disposition.

 

Ian Hull:    And then the rights in respect of burial continued as well and something that the executor was obligated to do.  It was also the question of the duty to dispose of the body in circumstances where so done in a dignified and sensible fashion.

 

Suzana Popovic-Montag:    And one of the points that was particularly interesting and stressed by the Court was the fact that the duty to have control and custody of the body by an executor can trump the surviving spouse's rights.  And that might come as a little bit of a surprise to the average lay person who may not be aware of the fact that they wouldn't necessarily stand in priority in those circumstances.

 

Ian Hull:    And I think Paul Trudelle's article is great because it points out there is a case, Trillium Gift of Life Network decision.  The interesting thing there is that it points out the fact that there's no property in the deceased's body but you have, the estate trustee is entitled to possession and custody of the body in their role.

 

So in terms of also considering some of the other obligations of the trustees and the powers that can be granted, when you're in a situation where there's a conflicting scenario, and Sopinka dealt with that as well, there's also opportunities where sometimes the executor is faced with religious tensions and stresses in respect of what should or should not be done.

 

Suzana Popovic-Montag:    And I refer you to, and you'll see a reference to it in the show notes, the decision of Salley v. Reichkart where the Court specifically dealt with whether or not religion had any bearing on the authority of an executor to deal with the body.

 

Ian Hull:    Again, Paul's paper delves into this really effectively in terms of that question but its one that can't be forgotten and also should be very seriously considered in terms of what our general theme of dealing with our clients is, we remind them to please communicate what your hopes and wishes are, especially if they are focused around some cultural or religious beliefs.  Make sure those are communicated both; sometimes you can do it in the Will, but also verbally to your family and the executor.

 

Suzana Popovic-Montag:    And that, of course, Ian, coupled with where to find the Will so that the individual who is the executor can have that opportunity to deal with the funeral arrangements right away, if he or she chooses to do so in a fashion different from what perhaps the family might otherwise want.

 

Ian Hull:    So my final comment before we wind up this podcast talks about the question of really the donation of body parts or the body itself.  And, of course, there's an Act in Ontario, and generally most provinces deal with this issue of gifting your body.  I was struck by the importance of this when I was recently taken through a tour of Toronto General Hospital of the lab where they deal with the whole question of defibrillation and the kinds of experimentation that's going on.  And we were taken through the lab and shown where different body parts are used when someone passes away for experimental purposes in the subsequent time, which is obviously fairly limited.  But the magic that they can pull out of the information, that they can pull out of those scenarios is remarkable.  And so the question of gifting body parts and the body itself is something that's worthwhile discussing with your family because you can pass on an incredible legacy even considering that as well.

 

So I think that winds up our podcast for today.  We wanted to just touch on the core, substantive issues that sometimes are forgotten and the tremendous obligations that are put on to executors that we've talked about in the past, on accounting obligations, obligations to file tax returns.  But one that is sometimes forgotten, and that is, the obligation to deal with the body immediately arising upon death.

 

Suzana Popovic-Montag:    Well Ian, notwithstanding that note that we'll be leaving this podcast on, it was a pleasure having the chance to join you again on Hull on Estates.  And we do look forward to hearing from our listeners.  Again, if you would like to provide us with some feedback, feel free to e-mail us at hull.lawyers@gmail.com.

 

Ian Hull:    And always check out our web page and check out our blog.  Our web page at hullandhull.com and please feel free to give us feedback.  So thank you very much, Suzana.

 

Suzana Popovic-Montag:    Thanks to you too, Ian.

 

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

 

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

 

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

 

 

Full post as published by Toronto Estate Law Blog on March 18, 2009 (boomark / email).