Understanding the Law
December 27, 2013
Sued by an executor for expenses

I hope you had a wonderful Christmas and that the spirit of Christ will continue to bless and guide you for the rest of the season.

I will continue to bring you some issues that relate to cases that were adjudicated in our own court in SVG. The case in point is Weekes v Weekes, No 113 of 2013. It involved an executor who probated the will, but was removed from his position before the distribution of the estate by family members/beneficiaries. The executor, a family member, sued the beneficiaries for expenses incurred in probating the will.{{more}}

Besides your beneficiaries, the executor is the main person in your will. He is responsible for probating your will, that is, he must bring the requisite documents – the application, oath, among other papers before the Registrar for a grant of probate. This is for all non-contentious matters. The assistance of a lawyer is often sought to see the matter through probate. After the grant is sealed, the executor has the burden of distributing the estate among the beneficiaries. Sometimes, he is not paid, but provision could be made in the will by the testator for reimbursement of expenses properly incurred. This case shows that an executor has to be paid for expenses properly incurred.

The testator must not take the executor for granted. The testator must ask him or her to become the executor/executrix and not just include a name for the sake of a name. It should not come as a surprise that a person is named executor in a will. Hence, this must be a considered decision, not one done in a slipshod manner. This is a challenge, which the testator must respond to positively. The executor has to distribute the estate according to the wishes of the testator, as stated in the will or he would be answerable to the beneficiaries. The law allows for more than one executor. This is a safeguard in case one person is not able to perform his duties.

In the above case, the original executor initiated probate proceedings and a grant was issued in 2008. The estate was not distributed up to 2010 when action was taken for the removal of the executor. If estate consists of land, the executor has to have a deed of assent drawn up, but if he has retained a lawyer he or she would know how to proceed. The deed of assent is filed at the Land Registry. The land must be surveyed and individual plots carved out, according to the deeds drafted for each beneficiary. It could be a drawn out process. At this stage, if an executor does not have the time to carry out his duties in a timely fashion, he should pass it over to another.

After he was removed, the original executor sued the family to recover some of his expenses. The court disapproved some claims and approved others. It appears that the executor was based in Canada and had to make trips to SVG to carry out his duties. The court allowed expenses for the return tickets. Some other claims were not allowed, because there were no proper bill/receipts. The judge believed that the duties of the executor could have been completed in one week. An important lesson is to choose an executor wisely. For an overseas-based executor, expenses could be much higher than a local one, because of travelling and accommodation expenses, among others.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: [email protected]