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Sunday, January 16, 2011

Fraudulent executor goes to jail

Those of you who have asked me what happens to executors who refuse to do their jobs properly will find this interesting. A judge in Ontario has jailed an executor for 14 months for defrauding an estate and for failing to comply with the court's orders. Click here to read an article about this from All About Estates.

11 comments:

  1. The Province and the Ministry of Attorney General have got to start taking elder financial fraud and Executor fraud much more seriously. I am in the middle of a nasty court battle because the estate attorney turned a blind eye and allowed the Executor to rob the estate of hundreds of thousands of dollars. And will the UCLS disbar this attorney for gross negligence? Good luck with that...

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    1. I don't know the facts of your case, of course, but I do want to make a general comment. I think you misunderstand the role and the power of an estate lawyer.

      Exactly how does a lawyer stop a person from lying or stealing? He can only do what any citizen can do - tell them to stop. And if the person does not stop, then what? What would you do? Call the police? That's an option for most people, assuming there is clear evidence. However, a lawyer is bound by lawyer-client privilege not to divulge what his client has told him. So calling the police - or anyone else - is out.

      A lawyer can't go to a judge, either. Our legal system is set up so that lawyers can't tell on their clients. Period.

      The only thing the lawyer can do is refuse to work with that executor. If money has already gone missing, that is of no help whatsoever to the beneficiaries.

      Now, on the other hand, if it can be proved that the lawyer actively helped the executor to steal money, that's different. That's illegal for anyone, including a lawyer. The problem here is, again, lying by the executor.

      Beneficiaries are often horrified to find that the estate lawyer has released the entire estate to the executor, rather than to the beneficiaries. But that's what is supposed to happen. It's the executor who has the responsibility to distribute the estate, not the lawyer. If the executor instructs the lawyer to give him the entire account and says that he's going to pay the beneficiaries, of course the lawyer is going to hand it over. For one, the executor is his client and calls the shots. And two, as I said, it's the executor who is bound by law to pay the beneficiaries.

      I know that seems hard for people to understand, but that is the law. Even if the lawyer suspects that the executor is skimming, all he can really do is warn him of the law and the consequences of breaching it. Believe me, some executors are greedy enough to lie to the lawyer and take their chances.

      Despite what the public likes to think, most lawyers are honest, hard-working people. There's no advantage to us to allow an executor to rip off beneficiaries. None whatsoever. In fact, all it would do is bring down complaints and lawsuits.

      If the lawyer in your case was actively involved, then I agree with you that he should be disbarred. We don't need him in our profession. But if your complaint is that he didn't stop the executor, that's going to be a tough one. Please let me know what happens.

      Lynne

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    2. would wipe the “smug smile off my face”. They are absolutely right . Tonjademoff.com

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    3. your article was about an asshole of a judge, knowing the person was in fact in poverty, and punnished a person in poverty, so that OTHER people in the general public would "take notice". Im sorry, where in time do WE get to base our actions on "the public!?" that judge is retarded. You dont punish someone based on your paranoid views of what "the public" has or hasnt noticed. AND OF COURSE the person was a minority and the judge was a white man.

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    4. Have you considered anger management classes?

      Btw, poverty is not an excuse for stealing other people's money.

      Lynne

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    5. The judge acted superbly; for justice. How do you know the person was living in poverty? I doubt it. I know what poverty is like; having no money for food, becoming anemic because I had no money for food, paying rent late, having to go to the rental board and getting an eviction notice because the executor stole from the estate and exhorted 10's of thousands of dollars I had to borrow to pay estate bills, refusing to reimburse money they extorted , while the executor is living large, with 2 vehicles and I never had a car and have to waste 4 hours a day waiting for late buses by public transport. The executor never has enough luxury and also claims poverty, which is far from true.

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    6. (Reply to anonymous Sep 14/18) I totally agree with you about the judge's actions. Sometimes you need to get tough with people and this executor needed what he got. He was certainly not in poverty, since he made that statement AFTER he stole the estate funds. I see executors every day who run roughshod over estates and beneficiaries, smugly thinking that nobody dares tell on them or knows how to stop them. This one was stopped, as he should have been.

      Lynne

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  2. What about lawyers trying to force beneficiaries to sign informal accountings when there is evidence of fraud, conflict of interest and misconduct and the lawyer knows it? Are the beneficiaries liable for signing an informal accounting when they know there should be a full accounting? This type of extortion should be illegal and lawyer face criminal prosecution.

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    1. You have a basic misunderstanding of how estates work, and it's one that's very common, unfortunately. Look, the lawyer has a client, who is the executor. If the executor has committed fraud, that's on him, not on his lawyer. Are you under the impression that we can take a dishonest, skeevy client and change him? That we can just say, oh don't be dishonest, and the client will suddenly fix all his misconduct and quit being fraudulent? Get real. Some of our clients are shitty people and terrible executors and we do the best we can.

      Lawyers can't force their clients to be decent executors, not can we force beneficiaries to sign anything.

      Enjoy riding the bandwagon.

      Lynne

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  3. What can a beneficiary do then if an executor has fraudulently dismissed the deceased's last will and probated a previous will, resulting in said beneficiary not receiving their inheritance?

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    1. A beneficiary can hire a lawyer to bring the newer will (assuming it is valid) to the court. Other matters go along with that, of course, such as the executor's fraudulent behaviour and losses by the beneficiary.

      Lynne

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