A caution to lawyers who may agree to act as an executor.
Lawyers often agree to be the executor for the estate of a client, friend, or family member. This situation usually only arises if no one else is readily available to act, and the client resists the suggestion of engaging with a trust company (which is common). Acting as an executor can potentially result in a bad outcome for the lawyer. “No Good Deed Goes Unpunished,” as they say.
The lawyer will typically request that a clause be placed in the will which allows for payment at the hourly rate of the lawyer as at time of passing of the client. Some lawyers may go so far as to ask for an agreement (akin to a trust company) allowing the lawyer to charge based on a percentage of the estate. However, you can bet that beneficiaries wont’ be happy paying a high hourly rate while the lawyer, as executor, sorts tea-cups and polishes silverware. Lawyers should be aware that in Manitoba any provision which fixes his or her compensation – whether by a clause in the Will or an outside agreement – is not valid unless approved by a judge (see subsection 90(5) of the Trustee Act). If the fee agreement suggests a percentage which results in a large fee, the lawyer may get in trouble if he or she hasn’t suggested that the testator receive independent legal advice prior to execution. In that case, a large fee tends to look and smell like a gift to a judge – expressly verboten under Law Society rules except in very specific circumstances.
When acting as an executor lawyers can and should expect to be held to a high standard. Like a trust company, lawyers can and should be expected to ably perform the minutest of tasks that a layperson may otherwise be forgiven for overlooking or performing incorrectly. Failure to perform these tasks correctly can even result in the lawyer’s removal as executor or legal action against the lawyer, because a lawyer is supposed to know better. Lawyers can try to delegate authority and performance of tasks, but this can create uncertainty: As we know, delegatus non potest delegare. Over-delegation can result in liability for the lawyer. Under-delegation can result in a requested fee that makes beneficiaries balk. What’s the takeaway? Lawyers should be cautious before taking on the role of executorship. In general, lawyers should not enter into such an engagement expecting to receive a fee at their full hourly rate. If there is a fee agreement or clause, the Trustee Act states that a judge needs to sign off. In lieu of an agreement or clause, a master of the court may become involved if the estate beneficiaries compel an accounting, as is their right. As much as possible, reserve your ‘executor punch-card’ for those relationships that are so important that you can’t say no, and you would gladly assist the estate for less than your hourly rate
Andrew Torbiak, LLB