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Wednesday, November 30, 2011

Court dings executor for costs for not remaining neutral

In BC, Sheryl Laing brought an action in court to vary a will, and was successful (Laing vs. Jarvis Estate, 2011 BCSC 1411). The executor of the estate, Kevin Jarvis, fought the court action. He wasn't a beneficiary of the estate.

When a beneficiary goes to court to ask for a ruling such as this, or on interpretation of the language of a will, the executor is not supposed to take sides. The executor's job is to present the facts and stay neutral. The executor should not favour one beneficiary over another or put his own interpretation on the meaning of the will.

In this case, Mr Jarvis clearly did not stay neutral. As mentioned, he opposed Ms Laing's court application. Once the matter was settled, Ms Laing asked that instead of taking the costs of the court action out of the estate, the costs should be paid by Mr Jarvis personally.

Another general rule of estates is that an executor is indemnified for fees and costs by the estate, so the court had to take that into consideration. However, Mr Jarvis hadn't followed the rule of neutrality that an executor is expected to follow. The court agreed with Ms Laing that Mr Jarvis had to pay the costs out of his own pocket. The costs were $9,611.04.

I like this ruling. I hear story after story about executors who do whatever they want with the estates they were chosen to look after and don't bother to follow the rules. I'm glad to see the courts sending this warning to executors everywhere.

To read the case, click here.

1 comment:

  1. Actually there are a few factual errors in this article. Mr. Jarvis originally attempted to fight the Will Variation action. The costs did not come out of Mr. Jarvis's pocket, it came from his share of the estate. Also, you have misspelled Sheryl, it is Sherryl.


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