What if there is no executor
Date: 15 Feb, 2024| Author: Fred Streiman

In November of 2023, Justice Graeme Mew rendered a very interesting decision in the case of the estate of Robert James.

On its surface, it was a relatively straightforward filed over the counter application. This is an example of estate litigation at the very doorstep of the process.

For those who are not regularly involved in estate law, applications for probate begins usually with a set of documents being filed over the counter at the courthouse. There is no physical or virtual court appearance. One simply files the documents and waits at times months for a response.

However, as the parties involved in the Robert James Estate learned the court always is in charge, and in this particular case exercised its inherent jurisdiction to say no. Mr. James signed his Will a half year before his death. He appointed a friend as the executor.

Two days after Mr. James died, the named executor quit formally known as renouncing. All of the beneficiaries agreed that Mr. William Bishop, a disbarred lawyer be appointed as executor. The court said not so fast, that doesn’t smell right and eventually rejected Mr. Bishop’s application to be so appointed. Mr. Bishop approximately 10 years earlier had been disbarred for being involved in dishonest and fraudulent mortgages. Eventually the beneficiaries of the estate filed material with the court explaining why Mr. Bishop had their support. It spoke of how even though he had been disbarred, they continued to trust his judgment and advice. There was also the strong suspicion that Mr. Bishop had prepared the application for probate, despite the fact that he was barred from acting as a lawyer.

Quoting from the 2016 book McDonell Sheard and Hull on Probate Practice, Justice Mew held that the court does have inherent jurisdiction to remove, appoint or pass over executors named in a Will. However, the courts are reluctant to interfere with the testator’s naming of who the executor should be. The court looks at ensuring that the interests of the estate are advanced and avoiding the risk of the estate not be properly administered and its assets endangered. At the same time under Section 7 of the Estates Act, the court has the responsibility of overseeing the granting of probate or letters of administration. The entire concept is for the court not to punish trustees for past misconduct, but rather to protect the assets of a trust in the interests of the beneficiaries. Most estates are a form of a trust.

In the end, the court could simply not wrap its mind around or overlook the problem of Mr. Bishop having been disbarred. To quote an important English case; “the purpose of being a lawyer and to uphold the profession’s reputation in the public’s eye is to maintain the reputation of the solicitors so that every member of whatever standing may be trusted to the ends of the earth”. The essential issue is the need to maintain among members of the public a well-founded confidence that any lawyer whom they instruct will be a person of unquestionable integrity, probity and trust worthiness. In other words, the court is trying to ensure that the public has with justification a reason to believe that the lawyer they are hiring will be acting in an honorable and trustworthy fashion. The court could not get over Mr. Bishop’s past wrongs in permitting him to be so appointed. As the court alluded to, that it might have been very different result had Mr. James named Mr. Bishop as the executor of his Will. Mr. Bishop jumping in and attempting to have himself appointed was a bridge too far ethically for the court.