Thursday, January 26, 2017
The executor says he had a verbal agreement with the deceased to do as he pleases with the estate
Posted by Lynne Butler
A reader recently wrote to me about an executor who does not appear to understand his role. Read on to see the question and my response:
"Can a claim by an Executor to the effect that he "had a verbal agreement" with the deceased to do just he pleases with the estate - e.g., to withdraw funds from it for his own benefit as he sees fit, or to make investments in property without consulting or informing the estate's beneficiaries - actually stand up in a court of law, simply on his say-so?"
The short answer is: No. Absolutely not.
Let's talk about why that's the answer. The fact that this person is an executor means there is a will that names him. The will contains the deceased's instructions about how his or her estate is to be distributed. A verbal agreement is of no value, as in Canada all wills must be in written form. The executor is bound by law to carry out the instructions in the will, and if he doesn't want to do so, he should renounce. An executor who is on one hand saying the will appoints him and on the other hand saying that the will does not contain accurate instructions is in a conflict of interest. He can't pick and choose which parts of the will suit him and which do not.
One of the reasons that wills must be written documents is that anyone could come forward and say that a verbal agreement exists even if one does not exist. There is no way to prove it or disprove it.
An executor who takes money from an estate "for his own benefit as he sees fit" is stealing from the estate.
It could be that this executor really does think he has the legal right to behave this way. As I said, most people have never been an executor and are learning as they go. It could also be that he knows full well that he is acting wrongly and doesn't care. Either way, if he continues on the way he is going, the estate will soon be dissipated and the beneficiaries will have to sue him and hope there is something left to get.
There is no government department or official overseer of estates. This means there is no watchdog to whom you can complain about the executor. The residual beneficiaries named in the will are the people who have the right and the responsibility to keep the executor on track. If the executor cannot be contained voluntarily, the beneficiaries should consider banding together to approach the courts for help. If the executor hasn't done too much damage and is willing to carry out the will's instructions properly, he might be allowed to stay on. Otherwise, the court might remove him because he is endangering the estate.