Commercial Litigation and Dispute Resolution Blog

People are often asked, and frequently agree, to act as the executor of another’s estate.  This decision is generally made without an appreciation of what the executor’s role really is, particularly where there is a dispute over the Will.  Ordinarily, an executor is supposed to preserve the estate’s assets, pay the debts and distribute the balance to the beneficiaries entitled under the Will.  However, what is the executor to do when the beneficiaries have competing claims or the Will itself directs the executor to take an adversarial position?  The short answer is that the executor must remain neutral.  A recent B.C. case provides a sad example.

In Ketchum v. Walton 2012 BCSC 175, the court was asked to give directions to an executor on what he should do in a conflict between the disinherited children and the executor over the terms of the deceased’s Will.  Mr. Ketchum was estranged from his three children.  Two years before his death, he signed a Will that gave his entire estate to various friends and charities.  This was done intentionally so the children would inherit nothing.  The Will explained why this was so and specifically directed the executor to take an active role in defending any wills variation claim by the children.  The executor was authorized to deplete the entire estate, if necessary, to defend such a claim and ensure Mr. Ketchum’s intentions were carried out.

Following Mr. Ketchum’s death, his children commenced a wills variation claim challenging their father’s Will.  The named beneficiaries under the Will did not defend the claim.  This is understandable given that the bequests were either small (to friends) or to charities that are not in the business of fighting litigation over gratuitous bequests.  It looks bad.  As a result, the executor defended the claim but (wisely) sought a direction from the court with respect to the exact nature of his role in the wills variation claim.  This was prudent because an executor’s duty to specified and potential beneficiaries is neutrality.  In the eyes of the law, “it is a matter of indifference to the executor as to how the estate should be divided.”

In Ketchum, the executor argued that because none of the named beneficiaries were defending against the children’s claim, it was appropriate for him to do so, particularly where the Will gave a specific direction to that effect.  The court disagreed.  It held that the executor was to remain neutral and was to participate in the litigation only in a non-adversarial role as an amicus to assist the court in determining the merits of the wills variation claims.  The court went further to state that the clause in Mr. Ketchum’s Will directing the executor to fight the kids was void as contrary to public policy.  This was so because it purported to deny the children their lawful recourse to the courts under the Wills Variation Act. 

While it is always sad to find yourself in a position that leads to disinheriting a child, the take away from this case is that instructing your executor to take up the fight against disinherited family members puts the executor in an untenable position and will not be allowed by the courts.