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An Executor’s Duty to Carry out the Terms of the Will
 
The executor or executrix has an obligation to follow the terms of the will. In broad terms, these duties will involve collecting the assets of the estate, paying off the estate’s debts, and then to distribute the assets to the beneficiaries following the directions of the will.  
 
An executor is obliged to act in the utmost good faith in administering the estate and to act in the best interests of the beneficiaries.
 
Where the executor is unsure what to do, or what the instructions are, they may seek directions for the court by making an application to a judge.  The guiding principle is that if the intention of the deceased cannot be ascertain from reading the terms of the Will, the court may look at the circumstances known to the maker when the will was made.
 
All beneficiaries are to be treated fairly, and no one beneficiary’s interest is to be placed above another’s. 
 
Conflicts sometimes arise between beneficiaries and the executor, especially where the executor is also a beneficiary.
 
 Generally, there are two problem situations. The first is where the executor has dealt with the estate’s property by doing more than the Will, on its face, may authorize.
 
The law is clear that the executor must obey the lawful directions of the Will, and is not authorized to depart from them, even to take action on the ground it would be beneficial. The only exceptions are where conditions arise that would have been unforeseen when the Will was made, or where conditions make it necessary. 
 
The second problem situation is where the executor fails to do what the Will directs. In such a case, the beneficiary may apply to the court for an order requiring the executor to take action, and the court has the power to order real estate be conveyed to a beneficiary, even without the cooperation of the executor.
 
Ultimately, a beneficiary may apply to the court to have an executor removed. The courts are generally reluctant to do this and the legal test to meet the grounds for an order of removal is high.
 
This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.
 
At our firm the lawyer to consult is Patrick McMurchy. To schedule an initial consultation with Patrick McMurchy, please call 250-753-6435 or email: linda@islandlaw.ca.

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