Legal Challenges and Litigation Risks

Even with careful planning, some estates become entangled in legal disputes. As executor, you must be prepared to respond if the estate - or your actions - are drawn into litigation. This final major section outlines the types of legal challenges that may arise and offers guidance on how to navigate them, including when to involve legal counsel (if you haven’t already).

While earlier sections touched on family tensions and informal claims, this section focuses on formal litigation and the potential risks to the executor.

Common Litigation Scenarios:

1. Will Contests

A beneficiary or other party may challenge the will’s validity - alleging lack of capacity, undue influence, fraud, or improper execution. This can pause administration and shift your role toward defending the will (if appropriate) or remaining neutral while the court resolves the matter.

2. Dependant and Spousal Support Claims

If a spouse or dependant claims inadequate provision under provincial legislation (e.g., wills variation claims in BC), you’ll need to respond through proper legal channels and avoid distributing assets until the claim is resolved.

3. Executor Misconduct Allegations

Beneficiaries may sue the executor for alleged mismanagement - such as misappropriated funds, undervalued asset sales, or unexplained delays. These claims can lead to personal financial consequences if the executor is found to have acted negligently or dishonestly.

4. Creditor Claims

If a creditor is unpaid, they may sue the estate - or the executor personally - especially if distributions were made without settling known debts. Due diligence and maintaining adequate reserves are essential protections.

5. Applications for Advice and Directions

In complex or ambiguous situations, executors can (and should) apply to court for guidance. Doing so can prevent personal liability by ensuring decisions are approved in advance, particularly in estates with legal uncertainty or conflicting interests.

6. Litigation Costs

A critical issue is who pays for legal disputes. In most cases, reasonable legal fees incurred by the executor in carrying out their duties are paid by the estate. However, if the executor acts improperly, the court may order costs personally against them. Reasonable, impartial conduct is your best defence.

Executor’s Role in Litigation

Throughout any legal proceeding, the executor’s duty is to represent the estate’s interests, not personal ones (unless the litigation concerns your conduct). In a will challenge, this typically involves supporting the validity of the will and supplying relevant evidence (e.g., circumstances around its execution, the testator’s capacity, or communication with the drafting lawyer).

However, if credible evidence arises that the will may be invalid, your role shifts to that of a neutral party assisting the court in determining the correct legal outcome - whether that’s a prior will or intestacy.

In all cases, your responsibility is not to “win” the case, but to help ensure the estate is administered according to law. Acting transparently, reasonably, and in good faith is your best protection - both legally and ethically.

At this point, we’ve covered from the moment of taking on executorship through to dealing with any complications and closing matters. The final step, really, is the peace of wrapping up responsibilities, which we addressed in distribution and obtaining releases.

To truly finalize:

• Ensure all court orders are implemented.
• Get yourself formally discharged if needed (some provinces require a formal passing of accounts for discharge; others the releases suffice).
• Thank those who assisted (professionals, family helpers).
• Store the records in case needed as mentioned.

This completes the journey of an executor from start to finish, avoiding pitfalls and handling challenges along the way.