Sibling rivalry is normal in every family. While most grow out of it, some never do and carry their resentments into their adult lives. The RMB Wills & Estates & Disputed Wills Division discusses a recent matter which highlights the importance of carefully choosing your executor.
Then executor(s) of your Will must be someone who you trust and in whom you have faith in their ability to carry out the obligations of the role. Many people appoint one, all or a combination of their children.
This works well in the vast majority of estate matters and the siblings cooperatively share the responsibility of applying for Probate and administering the estate. Indeed, having more than one executor is advisable to ensure oversight of decisions and the conduct of the executor as well. However, you might want to think twice about this if your children have a bad relationship.
In a recent matter in which our firm acted, two sisters were made the executors of their father’s estate. There were four children in the family, two of which were not made executors. On account of several issues from their past, the two sisters were unable to put aside their differences. In fact they couldn’t even be in the same room as each other.
We ended up acting for only one executor with the other engaging her own legal representation.
Our client was the eldest and closer to her father in the final years of his life. Indeed, she was also appointed to act as his attorney. Even though the deceased was on speaking terms with all four of his children, he had only wanted our client to act as his attorney, yet he decided to make two of them the executors.
The decision to make only one of them an attorney exacerbated the already difficult relationship between the sisters and led to allegations being levelled against our client of impropriety in relation to managing the deceased’s financial affairs. This resulted in a threat of a ‘notional estate’ claim against our client to force her to pay monies into the estate.
There was no evidence of any wrongdoing on the part of our client and it turned out that the allegations were baseless. They were ultimately not pursued.
Our client was keen to move forward with the application for Probate and to fulfil her obligations as executor. She was supported at all times by the other two beneficiaries. However, the non-cooperative executor refused to renounce as executor and dragged the matter out for nearly a full year, all the while refusing to sign any documents we prepared. Eventually through negotiation between the solicitors, she agreed to apply for Probate and administer the estate.
At the end of the matter all involved were left scratching their heads wondering why this couldn’t have occurred from the outset, especially when it emerged there simply wasn’t any evidence to support her allegations concerning the conduct of the Power of Attorney appointment.
This matter was extremely difficult and resulted in a substantial delay being caused because the other party refused to engage with the process and wouldn’t allow the estate administration to progress. Unfortunately, even in cases like this having an executor removed is not an easy process and the Court will not readily agree to such a request.
The other non-executor siblings were most disadvantaged by the bickering, delays and significant legal costs of both executors. They were essentially powerless at the hands of an unreasonable executor.
Undoubtedly, the issues were as a result of an historically bad relationship between the parties. Because of this, appointing both as executors was a poor choice. Ideally, one of the other children or a third party would have been better suited to act.
What this case demonstrates is that you need to give some practical consideration to how well your executors will work together. Chances are if they already don’t get along, they aren’t likely to reach a newfound consensus once you pass away. Our advice is that when it comes to appointing an executor, you shouldn’t worry about offending anyone and just appoint the person you feel is most suited.
If you need some advide on appointing an executor, our team can guide you through the entire estate administration process. Your first step should be to contact our office to arrange a consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.