Imagine this scenario: Larry the Lawyer works for a large law firm. For ease of reference let’s call the law firm LLF. The clients love Larry. One such client - let’s call him Clint the Client - was so impressed with him that he appointed Larry the Lawyer as his sole executor. Clint the Client is worth about $200,000,000. Using the tariff as a guide, the executor fees might be as much as $10 million. So does Larry the Lawyer or his firm LLF become entitled to the executor fees?
The main asset of the estate of Mary Sullivan is the Sanders Portrait, a 400 year old portrait purportedly of William Shakespeare. It is believed to have been painted during Shakespeare’s lifetime and has been appraised at $50 million USD. Ms. Sullivan died on April 6, 2020. Her last will and testament named her husband as the executor of her estate and in the event he predeceased her - which he did - her cousin. Ms. Sullivan’s cousin renounced, which left the second alternate, her long-time accountant Mr. Taylor, to administer the estate. Mr. Taylor accepted the appointment and five months later was met with an application brought by Mr. Meuse (a beneficiary) who sought to remove him.
How do dependants rank in terms of priority over others with a claim or interest in an estate’s assets? Let’s get a running start with a quick review of the law. During their lifetime people often borrow money. Sometimes the loan is to buy a house or car, or even to invest in a business. When a person dies, one of the jobs of the executor is to pay off all the debts before dividing the estate amongst the beneficiaries. But, what about those people who relied on the deceased for support? Who gets paid first - the creditors or the dependants?
In this case, the children were fortunate that the judge found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.
Individuals who act as a trustee or an attorney for property are statutorily entitled to compensation for the time and effort they have expended in their respective roles. Notwithstanding the entitlement to compensation, courts will not reward individuals who fall below their common law or statutory obligations. The question then, is what actions or omissions must an individual do in order to disentitle themselves from their statutory entitlements to compensation.
An attorney for property ("POA") risks personal liability for failing to keep records. Given the heightened level of responsibility, judges may draw an adverse inference when the POA does not produce proper records. This video reviews a case where the judge made the attorney give back almost 1/2 Million dollars.
Trust companies and banks are often appointed by the courts to act as an Estate Trustee During Litigation (“ETDL”). They are sometimes considered the “best choice” because of their experience, resources, objectivity and integrity. However, in recent years many accountants and solicitors have taken on ETDL appointments. Given that they do not have the experience of the banks, this blog post seeks to provide practical advice and consideration for those who are contemplating taking on the role of an ETDL.
The courts have awarded attorneys a “special fee”, in addition to any compensation permitted under the power of attorney document or in the tariff, where extra or specialized work by the attorney was necessary in the administration of the grantor’s property or their personal care.
McQuoid v. Patterson is a very interesting case that raises a number of different issues. The late Arthur Marvin Patterson Junior (“Arthur”) died intestate. Had he made a Will, Arthur could have chosen an estate trustee whose responsibility it would be to gather in his assets, pay his liabilities, and distribute Arthur’s assets as provided for on his Will.
There are times when one executor can be held liable for the misdeeds of another. In Cahill v. Cahill the Court dealt with this issue. This educational video highlights whether all estate trustees have a responsibility to fully participate in the administration of the trust and under what circumstances liability flows from delegation and failure to supervise their co-executor.