Many, many estates are administered reluctantly, for little pay given all the time and aggravation required (which probably explains the reluctance) and usually just out of a sense of responsibility or respect towards the deceased’s legacy.
The name given to persons who manage the estate of a dead person is personal representative.
More specifically, he or she is called an executor if appointed in a will.
In two situations, the manager of an estate will be called administrator.
The first situation is where there is a will and a nomination of an executor but the nominee declines. Someone else then has to come out of the woodwork and apply to the court to be appointed not as an executor but, rather, to be administrator.
The other situation is where a person dies intestate and the court has to appoint a manager. He/she, too, is then called an administrator.
In estate law, the job of the personal representative (administrator or executor), is to collect the assets of the deceased, generate an accounting, pay any taxes or other liabilities of the deceased, distribute and close the estate; an often long and laborious process, sometimes with impatient, suspicious or greedy eyes watching or critiquing every move.
Because of these “challenging working conditions”, it is quite rare for persons to squabble over who should be administrator. Usually, family members are delighted that one would come forward and offer to do this unappreciated but heavily supervised task.
In legal theory, when a person dies, their estate comes under the general supervision of the court.
In Re Heguy:
“The Court has an interest in and a supervisory duty over the actions of its appointees in respect of the administration of estates.”
For intestates, this principle is reflected in most Canadian estate laws such as §3 of the BC statute:
“From the death of a person dying intestate until administration is granted in respect of the person's estate and effects, the personal estate and effects of the deceased person are vested in the court, subject only to the power of a court of competent jurisdiction to grant administration in respect of them.”
Why does the Court need to get involved if there is no opposition to a proposed administrator?
Some would say that this supervisory role is essential to control against abuse. Others would say that this way station is unnecessary and has been implemented by the state to ensure that the state collects death or probate taxes.
But until further notice, as they are the “supervisors”, judges don’t want to manage individual estates so they’re looking for candidates to do it: administrators.
In some areas of the law when help is needed in regards to the exercise of a person’s rights or assets, statutes provide a hierarchy such as, by way of example, in the area of emergency health care (e.g. patient is unconscious).
The BC health care legislation has, as of 2008, a list which starts off with the patient’s spouse; next, the patient’s child, followed by a parent, then siblings.
This provides for a clear pecking order and pre-empts any personalized or emotional bickering in crisis circumstances.
With this in mind, some jurisdictions provide a priority list. From the 2007 edition of Wills and Estates – Halsbury’s Laws of Canada (Lexis Nexis): “Alberta, Saskatchewan, Newfoundland and Labrador, Nova Scotia, Northwest territories and Nunavut legislation prescribes an order of preference.”
Alberta does so in its Surrogate Rules, Alberta Regulation 130/1995.
Saskatchewan’s list is very similar to Alberta’s and is at §11 of the Administration of Estates Act, SS 1998, c. A-4.1 (emphasis added):
“Where a person dies intestate, the persons entitled to apply for letters of administration are the following, in order of priority: spouse, children, grandchildren and other issue of the deceased taking per stirpes, parents, siblings, nephews and nieces, next of kin of equal degree of consanguinity, creditors, (and) the Crown.”
In Re Coupal, the Saskatchewan Court added muscle to any doubts that statute may have raised by saying that: “The court should not exercise the discretion ... to pass over the right of the widow of the deceased and grant administration to someone else unless a very strong case of unfitness is made out against her.”
When a statute sets out a pecking order, it gives an applicant favoured by that pecking order a clear advantage which could cause a court overly impressed with the statutory list, to appoint someone other than the best candidate for the job, requiring all others to show cause as to why the higher priority candidate ought not to be appointed.
Other jurisdictions use softer wording and do not establish a priority or preference but merely enumerate an eligibility pool, with no stated priority between classes.
In estate law, time is not of the essence on the scale of emergency health care. Statutory priority lists ignore the prevalence of occasions when a child is more qualified to act as administrator than would be, for example, the widow.
This would be the case, for example, when the deceased lived with or married his widow only briefly before his death.
The deceased may have signed powers of attorneys or living wills or representation agreements appointing someone outside of the statute priority list, showing considerable regard for this other person.
A spouse might significantly meddle with the estate before she is appointed, and by such conduct attract the Court’s attention to another person.
Another example might be severe acrimony between a surviving spouse and a particular child which might then favour the appointment of another child or a sibling of the deceased.
A parent to the deceased might have special qualifications which by far, better enables him to administer a complex estate when compared to the spouse or a child of the deceased.
Alive to these very real possibilities, other jurisdictions do not provide for a pecking order or a priority list when it comes to prospective administrators.
For those that do, will leave the Court an “out” such as this, again from Saskatchewan’s estate administration legislation:
“A judge may appoint any person that the judge considers appropriate to be the administrator of an estate ... where by ... special circumstances, it appears to the judge to be necessary or convenient to appoint as administrator, of all or part of the property of the deceased, some person other than the person who, by law, is entitled to a grant of letters of administration.”
The relevant legislation in Ontario and British Columbia appears to offer the best of both worlds.
Ontario’s Estates Act, RSO 1990 Chapter E21, at §29, is a bit softer, using the words:
“(W)here a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to ... (a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death, (b) the next of kin....”
In BC, the Estate Administration Act RSBC 1996 Chapter 122, §6 similarly sets out eligibility pool does not prioritize the candidate pools:
“If a person dies intestate, or if the executor named in a will refuses to prove the will, the court may grant the administration of the estate of the deceased person (a) to the surviving spouse of the deceased person, (b) to one or more of the next of kin, or (c) to the surviving spouse of the deceased person jointly with one or more of the next of kin, as to the court seems expedient.”
However, whether or not the BC and Ontario legislation establish eligibility pools or, by listing the pools in an ordered list actually do offer a priority listing, is a matter that remains slightly unsettled.
Halsbury’s Laws of Canada (op.cit.) properly interprets the statutes by stating “in some provinces, for example, BC and Ontario, the Court has discretion to choose the spouse of the deceased person, one or more of the next of kin....”
But in a statement of the law that appears to in error, CCH’s publication Canadian Estate Administration Guide (2005, ¶13,036) says, in regards to §6 of BC’s statute, “the provincial legislation prescribes priorities among the next-of-kin.”
Where the estate administration statute does not estabish a priority, no eligibility class has any statutory advantage over another.
In British Columbia, the reference to “special circumstances” is to allow the Court to deviate right off the stated eligibility pools, a clause which essentially gives the Court discretion to bring in any third-party not on the stautory list, if there are “special circumstances”.
From Volume 17(2) of the 200 edition of Halsbury’s Laws of England, at ¶181: “No broad rule of law can be laid down as to what are special circumstances enabling the court to pass over a person otherwise entitled to a grant. Each case must be decided upon its own merits.”
The Canadian edition of the same legal series (op.cit., at page 489) adds: “the power is very wide.”
Some general principles are relevant but which may be of limited assistance in those jurisdictions where a statutory list establishes a priority.
In Royal Trust v Bates, Justice MacDonald of the BC Supreme Court adopted these words of legal wisdom:
“The first duty of the Court then is to place (administration) in the hands of that person who is likely best to convert it to the advantage of those who have claims, either in paying the creditors, or in making distribution.... The selection rests with the discretion of the court; that discretion however is not to be arbitrarily or capriciously assumed, but to be a legal discretion governed by principle and sanctioned by practice; in exercising it the Court is not to be guided by the wishes or feelings of parties, but is to look to the benefit of the estate and to that of all the persons interested in the distribution of the property.”
In the end, the words of an old English case apply (Budd v Silver):
“Where there is no material objection on one hand, or reasons for preference on the other, the Court, in its discretion, puts the administration into the hands of the person with whom the majority of interests are desirous of entrusting the estate."
Or an 1809 case, Earl of Warwick v Greville (as quoted favourably by the British Columbia Court of Appeal in 1966, Re Heguy):
“...the selection rests with the discretion of the Court; that discretion, however, is not to be arbitrarily or capriciously assumed, but to be a legal discretion governed by principle and sanctioned by practice; in exercising it the Court is not to be guided by the wishes or feelings of parties, but is to look to the benefit of the estate and to that of all the persons interested in the distribution of the property. The first duty of the Court then is to place it in the hands of that person who is likely best to convert it to the advantage of those who have claims, either in paying the creditors or in making distribution; the primary object is the interest of the property.”
What are the job qualifications for a prospective administrator?
From 1989 27th edition of the British law book Tristam and Coote’s Probate Practice, page 429: “Among the grounds of objection are badness of character, bankruptcy or insolvency, or extreme ill-health (and) ... should one of the applicants have an interest incompatible with the due administration of the estate, the court will exclude him.”
It is not generally helpful to have a criminal record. In an executor case, in Re Haggerty, the Court wisely passed on a notary public’s application for probate given the notary’s past convictions for misappropriation of estate funds.
But in Re Oughton Estate, the applicant for probate (he was a named executor), had been convicted for sexual assault and a long prison term. The fact that he had never been convicted of fraud or theft must of impressed the judge who let the individual act as executor!
Research and Further Reading:
- Budd v Silver 161 ER 1094
- Earl of Warwick v Greville 161 ER 934
- Re Coupal 4 WWR 611 (1952)
- Re Haggerty 62 DLR 2d 228 (1967)
- Re Heguy 57 DLR 2d 468
- Re Oughton Estate 40 ETR 296 (1991)
- Royal Trust v Bates 1919 BCJ 29