In the short, only 24 paragraph long, but incredibly dense decision of the Alberta Court of Appeal in the Brodylo Estate, a number of legal and practical estate issues are put forward. The case stands for many propositions, but none more clearly than having more than one executor is a questionable idea unless there is a good reason for multiple executors being named.
Naming all four of your children is an invitation for serious trouble. It is not uncommon for drafting lawyers to insert a majority rules clause amongst executors in the event of a disagreement, however even these are not a cure-all. In this particular case, a majority rules clause was within the Will, but it was no help in the face of some strange behavior and positions taken by the majority. It is important to remember that the court has the authority to govern its own process, and this is based upon not only historical i.e. common law rights, but also statute law that places the court in charge of its own process.
It is impossible to predict when the court will flex its muscles, but a lack of rational behavior by executors is always a red flag.
Here we have an example of estate litigation when multiple executors disagree.
To paraphrase the court, even intelligent people of good faith can disagree. Add in a dose of family dynamics and it is easy to understand why there can be friction and conflict amongst co-executors leading to a paralysis in the decision-making process.
I often explain to my clients that naming more than one executor triggers an exponential increase in the people that become involved in running an estate.
Do not ignore the executor’s spouses who often have a great deal to say on the subject.
Appointing two rather than one executor can lead to four people all having different opinions on a straightforward decision that the testator i.e. the willmaker could not have cared less about. An example can easily be whose friend will get hired as the real estate agent on the sale of the estate’s major asset. The court reluctantly maintains the right to even order the removal in some cases of some or all of the executors when they do not cooperate. The court additionally has the ability to make an order eliminating the need of dissenting executors to sign or take any specific steps.
It is interesting to note that in this litigation, the legal costs were approximately $200,000 which could have been avoided with either good faith on the part of all, which is asking a lot with four siblings, or a narrower focused appointment of executors.
