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Sunday, April 25, 2021

This clause does not mean what the executor thinks it means

I don't like to be too tough on the average executor because most of them by far are just decent people trying to do a job that is thankless and confusing. However, when it comes to someone who is just plain selfish or greedy and who mistreats an estate because they think they have the legal power to do so, I'd honestly like to shake them. This reader sent me a note about an executor like that:

"for all purposes contained in this my willi give my trustee the following powers, to postpone the conversionof my estateor any parts or parts thereof, for such length of time as my tustee might think best" Does this mean they dont have to pay put anything to the beneficiaries at all? My husband is entitled to one thrid of the estate and his sister was appointed sole executor and trustee. She told him "They left everything to her" and she is giving him a third of the house as a goodness of her heart and he should be lucky to receive that. SHe is currently living in the house. Although the will states he is entitled to one third of the estate she only valued the house. Not the contents or bank accounts and told him he should be lucky. He is confused by her actions and her accounts. Is this right?

None of that sounds right to me. I believe that this is a case of an executor having no bloody clue what she is doing. Either she hasn't hired a lawyer for help with the estate or she is completely ignoring what her lawyer said (yes, that happens).

Since you quoted directly from the will, I assume that you have a copy and you know for sure that your husband is supposed to receive a third of the estate. 

Apparently the sister thinks that being the executor means that she gets everything. It could be that she is reading language in the will that says something like "I give my trustee my estate on the following trusts" but never got past the "I give my trsutee my estate" part. I have run into executors before who actually do think they have the right to decide who gets what, despite what the will says.

If the will gives your husband a third, then it has nothing to do with the goodness of the sister's heart. She is legally obligated to give him a third, after debts and expenses are paid.

The clause that you quoted has been raised before by executors who are clueless about what it means. Anyone looking for an excuse to mess with the distribution of an estate seems to fixate on that clause for some reason. All it says is that an executor can try to be smart about selling or cashing in assets to take advantage of good market conditions and other factors so that everything isn't sold at fire sale prices. Nothing more. No, it does not give an executor the right to decide a beneficiary doesn't get anything. 

Has the sister filed an inventory at the court as part of the probate process? This is always required either immediately upon applying for probate or shortly after that. You are right that the estate includes not just the house but the accounts, vehicles, insurance, household contents, and everything else that your mother-in-law owned. Things that would not be included would be anything that has a direct beneficiary designation such as a life insurance policy or RRSP that is left to a particular person.

You need to take the copy of the will to an estates lawyer (and get someone with lots of experience, not someone who just dabbles in it) and ask for help. The idea is not necessarily to sue the sister, but just to keep her in line. If the sister doesn't start doing what she is supposed to do, she is going to find her inheritance eaten up in legal fees.


  1. Lynne,

    I won't hold back. Some people (not just Executors and Beneficiaries) are just plain devious, crooked.


  2. Lynne, not sure where to post this...
    I found this of interest. Perhaps you too will find it of interest.
    Grey Areas -Legal
    I subscribe to this Legal  site- Grey Areas. This commentary is especially meaningful in light of what I am going through. In my case, it's me requesting,  or me and my lawyer requesting important and necessary documents from the other side. I may use this if and when I get a response from the LSUC. I believe it can be useful should I have the need to retain other counsel.

    Honest, Open and Helpful

    1. I read the article you linked to. It was interesting for me as a practitioner because I don't recall ever seeing such a detailed explanation of what we as lawyers are expected to do when responding to our regulators. Interesting reading, thanks! And I hope other readers who feel they are having issues getting stuff out of lawyers will read it as well.



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