Wills Variation Actions: When Executor and Defendant Beneficiary are the same person

Many executors mistakenly believe they have a responsibility to defend the will and its provisions in a wills variation action. The law is clear: the executor of an estate should be neutral, and not enter into the dispute. The court has said, “it is a matter of indifference to the executor as to how the estate should be divided.”

Unfortunately, in reality, most Wills provide that one of the beneficiaries is also named as the executor, and that person, as a beneficiary, has a personal stake in how the estate is to be divided.

The dilemma can be resolved by having the executor voluntarily step down, be replaced, and then carry on in the role of the defendant beneficiary, and have the estate and the defendant beneficiary separately retain counsel. Again, in reality, is rarely done.

Practical issues may arise concerning the payment of legal fees and costs. The executor can retain legal counsel for the estate and charge the legal fees to the estate, but because the executor is to remain neutral, there is usually very little to be done. The defendant beneficiary is expected to pay their own lawyer out of their own pocket. Also, the rule that a successful party is entitled to costs also will be applied in most wills variation actions. So, in the circumstance that the defendant beneficiary is the unsuccessful party those costs would be paid by them, not the estate.

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.

By Patrick McMurchy