The role and responsibilities of a personal representative (executor) in estate matters can be complex, challenging and emotional – especially when that person is a spouse or child of the deceased.
Sometimes, a well-intentioned testator will appoint two or more personal representatives to "spread the load" of administration or to avoid the perception of favoritism. In practice, however, this can lead to unintended consequences, chief of which is what happens when the joint personal representatives disagree.
"Majority rule" clause
In some wills with joint personal representatives appointed, the testator will go a step further and include a clause to address this eventuality by providing for majority rule. That is, if there is not unanimity among personal representatives, the decision of the majority shall govern. Unfortunately, this will not always prevent intra-executor disputes as intended nor will it automatically apply to each and every decision or act required of the personal representatives during the course of estate administration.
This was illustrated in the recent case of Brodylo Estate (Re), 2023 ABCA 314, where MLT Aikins counsel Judd Blitt represented one of four joint personal representatives (all siblings) of their late mother's estate.
In this case, three of the four personal representatives sought to obtain probate based on questionable values ascribed to certain estate assets. The fourth personal representative would not sign the probate application documents (which necessarily include swearing an affidavit) based on these values. She was also never provided with a satisfactory explanation from her siblings for the basis of these asset values.
The majority sought an order from the Court that probate could proceed without the dissenting personal representative's signature. The Court denied this request and issued advice and directions intended to help the siblings resolve the issues related to the disputed values.
The majority appealed that decision, but the Court of Appeal of Alberta confirmed that the Court retains a broad supervisory jurisdiction over estate matters, including where the will contains a "majority rule" clause in respect of decisions made by joint personal representatives. It was confirmed that the clause cannot be used to override the fiduciary duties joint personal representatives owe to each other or to deny one personal representative the material information used by the others to make decisions about the estate.
The Court further held that the majority's conduct, in refusing to adequately respond to the minority's reasonable requests, was sufficient to attract enhanced costs against the majority personally.
The Court of Appeal upheld both decisions in favour of the minority.
Key takeaways
Some important lessons can be learned from this case. Firstly, when drafting a will and contemplating appointing joint personal representatives, it is necessary to honestly consider the potential that the individuals appointed may not agree or get along with each other. In these cases, it may be a good idea to appoint an independent third party as personal representative. A "majority rule" clause will not be a cure-all (and may in fact lead to further conflict).
Secondly, joint personal representatives must deal with each other respectfully and in good faith. Intra-executor disputes end up costing the estate time and money and fail to serve the interests of the beneficiaries.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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