B.C. Case Comment: Dilatory Executor Personally Responsible for Portion of Legal Expenses

A personal representative of an estate (executor or administrator) has an obligation to account and to provide information about the administration of the estate to the beneficiaries.  The personal representative cannot simply ignore this obligation.  A beneficiary has remedies if the personal representative ignores requests.  The Court may reduce the remuneration payable to the personal representative (i.e. executor’s fees), or reduce the amount of costs that a personal representative is entitled to receive, with the result that the executor may be personally responsible for paying expenses that they expected to have paid by the estate.  The most common example is legal fees – if the personal representative delays or otherwise causes the estate to incur legal fees which could have been reasonably avoided, the executor may be personally liable for that expense.

The B.C. Supreme Court recently considered this issue in Bowling Estate (Re) 2022 BCSC 369.  In Bowling, the deceased died with no spouse and four children.  She left a will naming one of her children as executor, and dividing her estate equally between her four children.  The estate was worth approximately $110,000 and was primarily liquid assets, and so it was a straightforward administration.

The executor did not seek any remuneration.

The court identified “distrust” between the executor and one of her sisters.  The distrust was magnified when the executor ignored requests for information from her sister about the management and administration of the estate.  The executor did not provide any explanation for her failure to respond to requests for information.  The sister retained counsel, and then the executor retained counsel.

The executor eventually delivered formal accounts in relation to the estate.  There were no objections made or concerns raised with respect to the accounts.  The issue was the delay in delivering the accounts, and the fact that the sister had to retain counsel and incur legal expenses in order to compel the executor to produce those accounts.

In the normal course, legal fees which are reasonably incurred in the course of administering an estate ought to be treated as a disbursement of the estate, to be paid by the estate.  However, where an executor has misconducted themselves or is guilty of delay or neglect in administering an estate, there may be a reduction in their remuneration, and also a reduction in the amount of costs they are entitled to receive.

In Bowling, the executor claimed $10,000 in costs.  The sister sought special costs in the amount of $11,500.

The Court reduced the executor’s costs from $10,000 to $6,000.  The Court was not satisfied that the executor’s (mis)conduct was to the degree that she should not recover some of the legal expenses she incurred to have her accounts formally passed.  The executor was personally responsible for any legal expenses that she incurred over $6,000.

The Court awarded the sister $6,000, to be paid to her personally by the executor.  The sister was awarded an amount for costs because she had a legitimate reason to hire counsel in light of the executor’s refusal to respond to requests for information.  However, she did not get the entire amount sought because she ultimately consented to the accounts as presented when she found nothing suspicious (beyond the outstanding dispute about legal costs).

In making these awards, the Court was mindful of the very modest amounts left in the estate.  The Court expressed disappointment that this issue made it before the courts at all.  The entire application (including the legal expenses for both sides and the use of court time) could have been avoided if the executor had responded to the requests from the beneficiary for information about the administration of the estate.