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Monday, January 4, 2021

Renouncing as executor may not always be an automatic right

Today I'm posting a case comment that was prepared for you by James D Steele, an estates lawyer in Saskatchewan who has shared some of his thoughts on this blog before:

An interesting lesson for executors comes from the recent Saskatchewan decision in Goby v Frederick, 2020 SKQB 201

 Wayne Frederick passed away. His will appointed his sister, Shirley Frederick, to be the executrix of his estate. Shirley obtained letters probate. 

The only asset in the estate was a piece of land valued at $800. Moreover, the estate of Wayne Frederick owed a lot of debt. Shirley Frederick desired to therefore renounce probate. Shirley discovered that she could not transfer the land in the estate without paying for a valuation, which she said neither she nor the estate can afford. 

Shirley Frederick desired to renounce probate, and hoped the Public Guardian would assume the role. 

Therefore, the issue in Goby v Frederick was whether an individual has the right to simply automatically renounce as executrix of an estate, after receiving Letters Probate.

The Court said no. An individual cannot renounce, unilaterally, as executrix, after receiving Letters Probate. The Court required that Shirley bring a formal court application to be removed as executrix, and that it be served on the Public Trustee in view of the minor beneficiaries. An affidavit by Shirley Frederick was to accompany the application, setting forth evidence of her inability to administer the estate.

The lesson:

Persons who are named executors of problematic estates (i.e. ones with high debt, or whose administration may be difficult to carry out) should be sure that they wish to serve as executor. 

Once an executor obtains letters probate, if you later decide you wish to renounce, you may need to go to the expense and time of a court application to do so. 

James Steele’s preferred practice area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 


4 comments:

  1. Lynne,

    What happens if an Executor, who has a health issue, a disability, gets a letter from his Doctor that he can no longer continue as Executor? The Executor's Lawyer has asked the Executor to provide a letter from his Doctor (for the Trial Judge as a Trial is in the works). The Executor then sends a letter to his Lawyer with instructions that the enclosed , unopened document, be given 'only' to the Trial Judge. The idea is that it is to be read by the Trial Judge before the Trial or at the Trial for 'all' to hear. The Lawyer in question does not do that. The Lawyer does not return the letter back to the Executor when requested after a 'sham' of a Trial. In Court, the Executor can only respond when questioned. He cannot ask any questions. He has no control. He is simply a Chess piece. What is going on? TBC.

    Webeye

    ReplyDelete
  2. Lynne
    I received this in my email today May 17, 2021. Is there a reason for this?


    Webeye

    ReplyDelete
    Replies
    1. I am not aware of emailing anything to you. I have no idea how/why it happened.

      Lynne

      Delete

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