What I’m Reading: Interesting Estate Litigation Articles for February 2021

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. Stan Rule at Sabey Rule discusses the use of multiple wills in British Columbia to minimize probate fees, and identifies potential pitfalls to avoid:  http://rulelaw.blogspot.com/2021/02/using-two-wills-to-minimize-british.html
  2. Janis Ko at Onyx Law posted two articles on the use of mutual wills in British Columbia:  https://onyxlaw.ca/mutual-wills-clear-evidence-needed-for-binding-agreement-not-to-revoke-a-will/ and https://onyxlaw.ca/mutual-wills-clear-evidence-needed-for-binding-agreement-not-to-revoke-a-will-2/
  3. Garrett Horracks at Hull & Hull LLP (in Ontario) writes about the “prudent investor rule” which applies to trustees managing trust assets, in the context of the recent GameStop share fluctuation.  Part 2 can be found here:  https://hullandhull.com/2021/02/the-gamestop-saga-part-ii-prudent-investing/
  4. James Steele at Robertson Stromberg in Saskatchewan discusses a recent decision of the Saskatchewan Court of Queen’s Bench, in which the court refused to summarily cure what appeared to be relatively minor deficiencies in a testamentary document because there were greater concerns about whether the document reflected the deceased’s testamentary intentions:  https://skestatelaw.ca/2021/02/05/estate-litigation-update-thorne-v-thorne/
  5.  Rebecca Rauws at Hull & Hull LLP comments on a recent Ontario decision which found that a gift in a will was void for uncertainty:  https://hullandhull.com/2021/02/estate-interest-void-for-uncertainty/

Happy Reading!

Estates in the News: Larry King’s Will Contested and a $5 Million Bequest to a Dog

There have been two interesting estate-related stories in the news this week.

Larry King’s Widow Contests his Will

First, the widow of TV host Larry King has gone to court to contest a handwritten will that purportedly leaves Mr. King’s$2 Million estate to his five children. She alleges that one of his children exerted undue influence on him, that he was “of questionable mental capacity” when the will was signed, and that he made a previous will in 2015 in which she was named executor.

Larry King had filed for divorce in 2019, but his widow claims that he was not actually pursing the divorce, and in fact they were working toward a possible reconciliation.

More can be read here: https://www.bbc.com/news/entertainment-arts-56095825 and https://people.com/tv/larry-kings-widow-shawn-contests-his-will/

If this case arose in British Columbia, Mr. King’s widow would have various remedies, some of which would depend upon whether she was a “spouse” at his death. She could argue that the will was invalid as a result of undue influence or lack of capacity. If the handwritten will was valid, then she could seek to vary the will to make provision for her only if she was Mr. King’s spouse at the date of death. The separation may have terminated her standing as a “spouse”. However, if they began to live together again for at least 90 days and the primary purpose for doing so was to reconcile, then she would have regained her standing as “spouse” and could seek to vary the will. If she was not a “spouse” at death, then she could bring a family law claim against Mr. King’s estate (or continue the divorce proceedings that were ongoing at his death).

Dog Inherits $5 Million

A businessman in Nashville who died last year stipulated in his will that upon his death his assets, worth an estimated $5 Million, would be transferred into a trust for the benefit of his 8-year-old border collie, Lulu. The will names a friend as Lulu’s official caretaker, and the funds are to be used to pay Lulu’s reasonable expenses. It is unclear who will receive the remaining monies upon Lulu’s death.

More can be read here: https://www.cnn.com/2021/02/13/us/dog-border-collie-lulu-5-million-dollar-trust-owner-trnd/index.html and https://people.com/pets/man-leaves-5-million-to-his-dog-in-will/

In British Columbia, will-makers have the autonomy to distribute their estate by will as they see fit.  If they want to make an “unconventional” bequest or provision in a will, then that is their choice to make. However, there are potential avenues to challenge such a bequest. There may be a challenge to the validity of the will, on the basis that the will-maker lacked capacity, did not understand what they were doing, or was unduly influenced. A child or spouse (if there is one) may also bring a claim to vary the will on the basis that it does not make adequate provision for them.

Misconduct by Person Holding Power of Attorney may Constitute a Criminal Offence

We are often contacted by clients with concerns about misconduct by a person holding a power of attorney. We may be contacted by the person who granted the power of attorney (the “donor”) or a family member of the donor who has discovered the abuse under the power of attorney (either during the donor’s lifetime, or after their death).

These clients are upset when they discover what has happened, and often they ask the same questions:

  • “Isn’t this criminal?”
  • “Should I also go to the police?”
  • “Shouldn’t this person be in jail for what they’ve done?”

We assist with obtaining civil remedies against the attorney, including recovery of property that has been taken and damages for breach of fiduciary duty. However, it should be kept in mind that theft by a person holding a power of attorney is also an offence under the Criminal Code of Canada.

Section 331 provides as follows:

Theft by person holding power of attorney

331 Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney.

Misconduct by a person holding a power of attorney may also fall within general Criminal Code provisions relating to theft and fraud.

There are key differences between moving forward with civil proceedings and criminal proceedings. In a civil claim for breach of fiduciary duty you must prove your claim on a balance of probabilities, while a criminal conviction must be established on the higher standard of beyond reasonable doubt. In civil proceedings, a plaintiff may also be able to rely upon rules which reverse the onus of proof for breach of fiduciary duty in certain circumstances.

People have been convicted and imprisoned for misconduct using a power of attorney. Here are few examples:

In R. v. Kaziuk 2011 ONCJ 851, the victim was 86 years of age at the time of the offences. The accused was her son, who she named as her power of attorney. At one point, the victim was “well off financially”, she owned her own properties mortgage-free and she had significant savings in her account. Then she signed a power of attorney naming her son as her attorney. The son used the power of attorney to register mortgages on his mother’s properties, as collateral for his own personal loan (to cover his own mortgage against his own home).

As a result of the son’s conduct, his mother lost her car and her savings, and she was evicted from her property when the banks seized her properties as a result of the fraudulent mortgages registered against title without her consent and knowledge. She lost everything and ended up living in a homeless shelter.

The son was 57 years old, and blamed his “financial misfortunes” and depression. He was convicted of theft exceeding $5,000 and fraud exceeding $5,000. The judge also held that the offence under s. 331 (theft by person holding power of attorney) had been proven. The judge described this as a “despicable breach of [his mother’s] love and trust. The son was sentenced to 10 years’ imprisonment, which was reduced to 8 years on appeal. There were aggravating factors, including a finding that the son was incapable of feeling empathy and had no conscience.

In R. v. Hooyer 2016 ONCA 44, the victim suffered from dementia and resided in a long-term care facility. The accused had known the victim since the accused was a child. After the victim’s wife died, the accused assumed control over the victim’s property, moving into his home, dissipating his assets, and diverting nearly $400,000 for his own use. He did not attend to the victim’s care, and did not see the victim for several years. He failed to pay the bill for the care facility, which resulted in a downgrade of the victim’s accommodation. The accused argued that he honestly believed he was authorized to use the money for his own purposes. At trial we was convicted of fraud and theft, and he was sentenced to imprisonment of two years less a day and six months to be served concurrently, and restitution of the monies that he took.

Finally, in R. v. Banoub 2019 ONCJ 681, the offender was the power of attorney for her mother, who suffered form dementia and lived in a care facility. Over a period of four years, the offender depleted the monies in the mother’s bank accounts and investments by $161,000. She spent the monies on gambling, living expenses, and a trip. The offender was sentenced to six months’ imprisonment and three years’ probation.

The above cases confirm that misconduct under a power of attorney is a serious matter and may amount to a criminal offense resulting in imprisonment.

B.C. Court Orders Medical Assessment to Determine Capacity of Elderly Person who Opposes Elder Abuse Lawsuit Brought on his Behalf

When cases of elder abuse arise, it is often a loved one who discovers alleged financial abuse, improprieties, or undue influence. But the loved one does not have standing to bring their own claim to recover assets for the rightful owner. The elderly person (the victim) must bring their own claim. Sometimes this creates difficulties. This person may lack capacity, or they may still be under the influence of the perpetrator of the fraud or otherwise unwilling to bring legal proceedings. What if a person is unable or unwilling to bring a proper and valid claim to recover their own property?

A proceeding can be filed and pursued on the person’s behalf by a litigation guardian, but only if the person is under a legal disability. A proceeding brought by or against a person under a legal disability must be started or defended by a litigation guardian – someone who agrees to conduct the litigation on behalf of the person with the legal disability. The test for a “legal disability” is whether the person is capable to instruct counsel and to exercise judgment in relation to the claims in issue and possible settlement as reasonable person would be expected to do. A person is presumed capable unless proven otherwise. If the person is capable, then they are the appropriate person to bring their own legal proceedings, unless there is a power of attorney or some other authority that would permit a third party to handle proceedings on their behalf.

What if you have knowledge of a case of financial abuse against a person under a legal disability, but the “victim”  does not want to bring a claim, and does not agree that they suffer from a legal disability? This was the issue in Stanford v. Murad 2021 BCSC 130, a decision of the B.C. Supreme Court released last week.

Mr. Stanford is 89 years old, and has two adult children who are the primary persons who will inherit their father’s estate upon his death. Mr. Stanford suffered from psychiatric disorders, including depression, for decades. He also suffers from other serious health issues and is unable to care for himself. In 2013, Mr. Stanford appointed his son-in-law as attorney-in-fact and executor of his will, and asked him to manage his affairs.

Mr. Stanford met the defendant in 2015, and they eventually moved in together. It is unclear whether they actually married, but Mr. Stanford was very dependent on the defendant. His daughter and her husband (Mr. Stanford’s son-in-law) allege that the defendant isolates Mr. Stanford and prevents them from seeing and communicating with him, that she is abusive, and that she is taking financial advantage of him. They allege that Mr. Stanford lacked capacity to take various steps, including appointing the defendant as his new power of attorney, adding her as a joint owner of various assets (including real property) and transferring monies to the defendant.

The daughter and son-in-law caused a lawsuit to be filed on behalf of Mr. Stanford, with the son-in-law as litigation guardian, seeking an accounting and tracing of all property transferred to the defendant.

Mr. Stanford sought to set the appointment of his son-in-law as litigation guardian. He does not agree that he is under a legal disability, and he does not want his son-in-law challenging the transfers and other arrangements that he has made with the defendant.  In other words, he denies that he is a victim of elder abuse, and he says that he has the capacity to make that decision.

The Court held that the evidence raised significant concerns about whether Mr. Stanford is under a legal disability. The Court ordered that Mr. Stanford attend a medical examination conducted by a doctor chosen by the son-in-law for the purpose of providing an opinion to the Court regarding whether Mr. Stanford is capable of instructing counsel and exercising judgment in relation to the claims and possible settlement.

If upon reviewing the medical opinion the Court determines that Mr. Stanford has the requisite level of capacity, then he can make the decision not to move forward with court proceedings against the defendant.  While Mr. Stanford remains capable, his daughter and son-in-law will not have standing to advocate and protect his assets by way of court proceedings brought on his behalf.

What I’m Reading: Interesting Estate Litigation Articles for January 2021

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. Doreen So at Hull & Hull LLP (in Ontario) authored a two part post on a recent Ontario decision where the public guardian and trustee sought to remove an attorney (acting under a power of attorney), and set aside a $250,000 transfer to the attorney along with various other transfers totaling $350,000. The attorney breached her fiduciary duty by accepting the money: Part 1: https://hullandhull.com/2021/01/pgt-vs-cherneyko-part-1-context-and-timing-is-everything/ Part 2: https://hullandhull.com/2021/01/pgt-vs-cherneyko-part-2-breaches-of-fiduciary-duty-in-the-time-of-covid/
  2. WEL Partners (Toronto) continued their series on solicitor negligence in estates and trusts with several posts on the issue this month, including no. 8 – a review of a couple of cases on this issue: https://welpartners.com/blog/2021/01/solicitors-negligence-in-estates-and-trusts-context-no-8-case-review-mccullough-v-riffert-barbulov-v-huston-2010/
  3. Hull & Hull (Ontario) posted two articles about less common potential causes of lack of capacity:  lack of sleep (https://hullandhull.com/2021/01/can-sleeping-too-little-affect-ones-capacity/ by Suzana Popovic-Montag and Tori Joseph), and medication (https://hullandhull.com/2021/01/medication-and-mental-capacity/ by Nick Esterbauer)
  4. Janis Ko at Onyx Law discusses a case that serves as a reminder that an executor must remain neutral in a wills variation claim, https://onyxlaw.ca/bc-executors-fees-not-allowed-for-opposing-wills-variation-claim/
  5. Trevor Todd at Disinherited.com has compiled some pointers (with case references) for removal of a trustee: https://disinherited.com/removing-executors/removal-of-a-trustee-pointers/

Happy Reading!

Case Comment: B.C. Court Dismisses Attempt by Estranged Spouse to Set Aside Property Transfer and Vary Will

I am often contacted by executors or beneficiaries of an estate when they have been served with what they consider to be a “nuisance claim”. Unfortunately, the death of a loved one may present an opportunity for others to bring unmeritorious claims. The estate may be large enough to attract claims that should never have been made, and the person who would have the best evidence to oppose the claims (the deceased person) is dead.

A typical example is someone surfacing and claiming to be the deceased’s spouse for the purpose of bringing a wills variation claim or other claim. This person may be a former spouse of the deceased, a casual romantic partner, a roommate, or even a stranger. I have previously written about the test to determine whether someone has standing as a “spouse” to bring a wills variation claim here.

The B.C. Supreme Court recently dismissed a dubious claim by a person claiming to be a current spouse of the deceased (but was found not to be one) in Lee v. Chau 2021 BCSC 70. In Lee, the deceased transferred his real property into joint tenancy with his adult children as joint tenants. His children said that he intended the transfer to be a gift, that their father’s relationship with the plaintiff ended many years before, and their marriage was a sham. The plaintiff argued that she was the deceased’s wife for 19 years. She claimed that the defendants held the property in resulting trust for her benefit, and she also sought to vary the deceased’s will to make provision for her.

The Will included the following rather scathing clause explaining why the deceased made no provision for the plaintiff:

“I am giving nothing to NU LEE [the plaintiff] whom I married on May 30, 1995, as although we were married, she refused to consummate our marriage or live with me as husband and wife and on March 1, 1996, she left me and returned to Taiwan, China and has not returned. I believe that she married me for the sole purpose of facilitating her entry into Canada as a landed immigrant. She has never and refused to consummate our marriage and we have at no time lived together as husband and wife relationship”.

The Court concluded that the deceased understood the effect of transferring property into joint tenancy, and that by doing so he intended to gift his property to his children. The Court gave clear indication that it did not think much of the plaintiff’s attempt to claim an interest in the property. In addition to quoting the above passage from the will, they relied upon the following evidence that the plaintiff was estranged from the deceased:

  • The plaintiff’s extended absence from the property for many years before the deceased’s death;
  • Her full-­time residence outside Canada for more than three years before his death;
  • Her ignorance of his terminal illness;
  • Their lack of contact immediately before his death, and
  • The fact that he died without her knowledge.

The Court also held that the plaintiff was not the “spouse” of the deceased at the date of death, and therefore did not have standing to bring a wills variation claim. The plaintiff was ordered to pay the defendants’ costs. While the Court did not use the words “nuisance claim” or say that the claim was a frivolous or vexatious one, the judge was clearly not impressed by the plaintiff’s attempts to come back and try to make a claim against the property and the deceased’s estate.  This decision confirms that the B.C. Courts are fully prepared to dismiss claims that they consider to be without merit.

What Happens in B.C. when Spouses die Simultaneously?

Unfortunately, it is not uncommon for spouses (or other family members) to die in a “common disaster” or tragedy, in which they die at the same time or in circumstances that make it uncertain which of them survived the other. One spouse may also survive the other, but then die mere days later (perhaps from injuries caused by the “common disaster”). If the two spouses have different estate plans, then the question arises: how are each of the estates to be distributed? This may be an issue when dealing with multiple marriages and blended families, where perhaps each spouse has left all or part of their individual estate to the other spouse and their own children, but not to their stepchildren. This arises not just with respect to their wills, but also with respect to jointly registered property, which carries with it a right of survivorship.

Fortunately, the Wills, Estates and Succession Act (“WESA”) simplifies this issue in British Columbia.

WESA provides that if two or more persons die at the same time or in circumstances that make it uncertain which of them survived the other, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other. If two or more persons held property as joint tenants, then unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or joint account as tenants in common with the other or with each of the others.

WESA goes one step further: a person who does not survive a deceased person by five days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person. If two persons hold property as joint tenants, or hold a joint account, and it cannot be established that one of them survived the other by five days, then one half of the property passes as if one person survived the other person by five days, and one half of the property passes as if the other person had survived the first person by five days.  Under the wording of WESA, the five-day survival requirement cannot be shortened in a will, but it can be extended.

As a result, in these circumstances each person’s assets (or their “half” of joint property) forms part of their estate and will be distributed as per their estate plan.

The above provisions do not apply to certain insurance monies, which are dealt with under the Insurance Act. For example, unless a contract or declaration provides otherwise, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable as if the beneficiary had predeceased the person whose life is insured.

Beneficiaries may Demand Early Distribution of Trust Property

The beneficiaries of a trust may be able to compel the trustees to wind up the trust and distribute the assets before the distribution date actually contemplated by the trust.

Many people want to maintain control over their assets and their legacy, even after death. They may have concerns about a child or other beneficiary receiving their bequest immediately or all at once. They may believe the beneficiary is too young to receive their inheritance immediately, or they may have concerns that the beneficiary will spend all of the money inappropriately if they receive it all at once.  There may be concerns about the beneficiary’s lifestyle or mental health.

This control can be maintained through the use of a trust provisions, either as part of a will or as a separate trust. For example, a will may provide that a child’s share of the estate is to be held in trust, with set amounts or percentages of the bequest to be paid out when the child reaches certain ages. A trust may provide that the child’s share cannot be paid out until a given date, but in the meantime the trustee may make distributions in their discretion, or for certain purposes such as education.

The beneficiary may find this frustrating. They may resent that they have to wait until they attain a certain age, or that they have to approach a trustee to request a discretionary distribution from their inheritance. A beneficiary in this position may have a remedy.

If all beneficiaries are of full capacity (i.e. they are independent adults), then they may call for the extinguishment of the trust, notwithstanding the settlor’s expressed wishes. This is referred to as the rule in Saunders v. Vautier.

For example, consider if a settlor established a trust for their child, which provided that the child would not receive the estate until they reached the age of 30. Once the child is an independent adult, they could, under the Rule, demand that the trust be wound up and the assets immediately distributed.

Another example: if a settlor established a trust for their three children, which provided that each child would not receive their share until they reached the age of 30, and if any child did not reach the age of 30 then that child’s share would be divided among the remaining children, then all three children (once they are independent adults), could demand that the trust be wound up and the assets distributed to them.

No court order or approval is technically required when the Rule applies. The beneficiaries may demand that the trustees deliver the trust property, and the trustees must comply. However, in practice most trustees want to ensure that they will not face any liability for winding up the trust early and acting contrary to the express language of the trust, and so they will often seek the direction and approval of the court confirming that they should proceed with the beneficiaries’ request.

The Rule only applies when all of the beneficiaries are adults with capacity. This is often not the case. For example, a trust may be intended to benefit all of the settlor’s grandchildren who have been born by a particular distribution date. If the trust is wound up early, there may be unborn grandchildren who would have benefitted had the trustees waited until the distribution date. Another typical example is a trust to be distributed to a child at some future date, but if the child is not alive on that date then to any children of that child who are alive at that date. There are contingent beneficiaries that may benefit if the trustees wait until the proper distribution date.

In B.C., the Trust and Settlement Variation Act [RSBC 1996] Chapter 463 addresses this situation.   If property is held in trust, the court may approve any arrangement or variation of the trust on behalf of any person having an interest in the trust, whether vested or contingent, who by reason of infancy or other incapacity is incapable of providing consent under the Rule in Saunders v. Vautier. The Act also allows the court to approve an arrangement on behalf of unborn beneficiaries or other persons who may become beneficiaries in the future.

However, the court must not approve an arrangement or variation of the trust on behalf of these classes unless the carrying out of it appears to be for the benefit of that person.

Revisiting one of the examples above: a settlor establishes a trust for their children, which provides that each child will not receive their share until they reached the age of 30, and if any child does not reach the age of 30 then that deceased child’s share would goes to their children (i.e. the settlor’s grandchildren) in equal shares. If the three children want to wind-up the trust before the distribution date (assuming they are all capable adults), they would need the court to approve the wind-up on behalf of their children (born and unborn). The beneficiaries would have to show some reason why the proposed wind-up and distribution would also benefit their children.   This may require creative arguments.

In summary, beneficiaries may not be bound by the timelines for distribution established by the terms of the trust.  They may have remedies to obtain an early distribution.

What I’m Reading: Interesting Estate Litigation Articles for December 2020

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. The suspension of limitation periods in B.C. as a result of Covid-19 ends on March 25, 2021. Stan Rule discussed some of the implications for estate litigation: http://rulelaw.blogspot.com/2020/12/suspension-of-limitation-periods-in.html
  2. WEL Partners (Toronto) published a series of posts on elder law this month, identifying potential scams and available resources. A post on a concerning case of elder abuse reported in the media can be found here: https://welpartners.com/blog/2020/12/elder-law-series-woman-with-power-of-attorney-takes-thousands-from-97-year-old-with-dementia/. A post with various resources for victims of elder abuse (or their concerned family members) can be found here: https://welpartners.com/blog/2020/12/elder-law-series-stay-safe-resources-should-you-or-your-loved-ones-become-a-victim-of-elder-abuse/
  3. Ian Hull and Daniel Enright of Hull & Hull LLP (in Ontario) discussed the Slayer Rule – a general rule of public policy that forbids a criminal from profiting from his or her own wrongdoing: https://hullandhull.com/2020/12/murder-insurance-money-and-the-slayer-rule/
  4. Ian Hull and Daniel Enright also wrote about an interesting case in which new homeowners found $600,000 in cash hidden in their house, presumably left there by the previous (and now deceased) owner. The personal representative of the estate of the deceased prior owner sought the return of the monies to the estate. The judge refused to grant summary judgment, concluding that more evidence was required to determine the matter. This means that the unusual case may return to the courts in the future. The post can be found here: https://hullandhull.com/2020/11/finders-and-keepers-and-the-hidden-half-million-dollars/

Happy reading, and Happy New Year.

The Final Hurdle: Passing of Accounts and Determining the Executor’s Fee

Once contentious estate claims have been determined, such as challenges to the validity of a will or wills variation claims, there is one final hurdle for the executor: the passing of accounts and determination of the executor’s fee.

The B.C. Trustee Act provides that a personal representative is entitled to remuneration to a maximum of five percent of the gross aggregate value, including capital and income, of all of the estate at the date of the passing.  An executor is also entitled to a fee for annual care and management of the estate which must not exceed 0.4% of the average market value of the estate assets.

In determining the fee payable, the court will consider the magnitude of the trust or estate, the care and responsibility involved, the time occupied in administering the trust or estate, the skill and ability displayed, and finally, the success achieved in the result. The fee is to be determined based upon the reasonable value of the services rendered, subject to the five percent cap.

If the beneficiaries do not consent to the form of accounts and the fee sought by the executor, then the executor must seek the approval of the court.

If there have been contentious court proceedings relating to an estate, there may be lingering resentment or continued conflict when the matter proceeds to the final passing of accounts. This gives the parties one last thing to fight about.

This was the case in the recent decision of In the Matter of the Estate of Nehar Singh Litt, deceased 2020 BCSC 1921. In Litt, the executor was one of six beneficiaries, all of whom are siblings. The deceased had left each of his four daughters $150,000. The residue of the estate (the total estate was valued at $9 million) was left to his two sons. The daughters brought a wills variation claim, and the court divided the estate 60% in favor of the daughters, and 40% in favor of the sons. I previously wrote on this decision in a post found here. The judgment in the wills variation matter can be found here.

The executor sought to pass his accounts, and he sought total remuneration of $654,449.34 for both parents’ estates.  The court observed that there was “considerable animus” between the executor and his siblings, and so it was not surprising that the executor was not able to obtain the consent of the beneficiaries to the fee that he sought and a hearing was required.  The court heard evidence and reviewed each factor over a three day hearing. Although the executor displayed skill and ability in handling the estate, and achieved success overall in maximizing the estate’s assets and income over a period of three years, the court held that the remuneration sought was excessive, and reduced the executor’s fee to $400,000.