In my practice, a common theme of sibling estate disputes involves a sibling who is the executor and other siblings who are beneficiaries. In these disputes, the ill feeling between the siblings is longstanding and is only exacerbated when the parent dies.
A recent decision of the Court of Appeal for Saskatchewan in the case of Figley v. Figley is an example where a poor choice of executor can cause the family not only grief but tremendous legal expense.
The facts of the case are somewhat complex but can be summarized as follows. Raymond Figley (the Father) farmed in Saskatchewan. He and his wife had eight children: Jim, Knighton, Merv, Stan, Ron, Gene, Rod and Bonny. The farm grew and in 1969, Figley Farms Ltd. was incorporated and the farming assets were transferred to it.
Father left the farm and moved to Saskatoon in 1971 to be close to his son Merv who had been injured in a bad accident. The parents separated in 1974.
Two of the sons, Ron and Stan remained on the farm and did the necessary work to keep it going. Ron and Stan stated that father orally agreed in 1980 that in return for their work and services, Figley Farms Ltd. would be theirs when the Father died.
In 1997, the Father pressured Ron and Stan to sign written purchase agreements for the land or he threatened to sell it. Ron refused but Stan entered into an agreement with the Father to purchase some land. The deal was never closed.
Father died in October 2007 and his last will dated just a few weeks before his death appointed son Gene as his sole executor. The other siblings claimed that during the last months of their father’s life, Gene worked to alienate the Father from them and from each other.
After the Father died, several legal proceedings were commenced including a will challenge and an application that Gene be removed as executor and the Public Trustee appointed to administer the estate.
At the initial hearing, the judge dismissed the application to remove Gene as executor. The Court of Appeal reversed that decision and ordered Gene be removed as executor and the Public Trustee appointed in his place.
In finding that Gene should be removed from his position because he lacked the good faith and fidelity required of an executor, the Court referred to the following factors:
- Gene had displayed intense ill feelings towards his family which was recorded in some emails attached to affidavits filed with the Court;
- Gene accused his siblings of stealing money from their father;
- In 2007 ( claiming to be acting on the Father’s instructions) Gene spread soil sterilant on Ron’s lawn, killing the grass and causing health problems for Ron;
- On at least 5 separate occasions in September 2007, Gene told one of his brothers, Jim that he was going “to screw Ron” and that the day before the Father died , Gene had said “I am going to f…ck Ron over”;
- Gene did not advise his siblings when their Father became gravely ill and they did not have a chance to be at the Father’s bedside or to be with him when he died;
- When the Father died, Gene took complete control of the funeral arrangements, a step his siblings found very disturbing ( interestingly the Court did not comment that an executor named in a will has the sole right to make funeral arrangements- perhaps the Court was troubled about Gene’s lack of good faith) ;
- Gene refused to show his siblings the will;
- Gene told a sibling that he was going through Father’s records and that he had “worn out a shredder and still had 38 boxes to go.” Such records may have been relevant to the ongoing litigation between Ron and Stan and the estate over ownership of the farm;
- One month after Father’s death, Gene published a notice to creditors in respect of the Father’s estate in the Saskatoon paper giving creditors one month to file claims without giving personal notice to Ron and Stan, both of whom he obviously knew would have major claims to advance against the estate if they had seen the terms of the will ;
- Gene had failed to provide an accounting for his dealings as power of attorney as had been previously ordered by the Court.
While it is not unusual in estate disputes to observe hard feelings between the executor and the beneficiaries, the Court found that more than hard feelings were involved here . Rather, there was an intention on the part of Gene to “punish” his siblings, particularly Ron and Stan.
The Court held that the difficulties in this estate giving rise to the appeal were directly linked to the Father’s failure, inability or lack of capacity to foresee the problems which would arise if Gene was appointed sole executor. In view of Gene’s limited financial resources, the Court ordered the appellants to have their reasonable solicitor and client costs paid from the estate.
Interestingly, the conduct displayed by the executor towards his siblings in this case is not that unusual. I regularly come across it in my practice.
This case will be added ammunition to rely upon when seeking an Order to remove executors who go beyond “hard feelings” and act in bad faith with punitive intent towards their siblings.