Can an Executor Be Sued for Breach of Fiduciary Duty in Alberta?

If an estate has lost money or value because of what an executor did or failed to do, you may wonder whether you can hold them responsible. Executors hold a position of trust, and the law expects a lot from them.

This article explains the duties an Alberta executor owes, how the Court can respond, and what to do before and while pursuing a concern.

This article covers the law of Alberta.

What duties does an executor owe?

A personal representative must act honestly and in good faith, in line with the will and the testator's intentions, and with the care, diligence and skill of a person of ordinary prudence in comparable circumstances. A representative with professional skill, such as a trust company or lawyer-executor, must apply that higher degree of skill when acting in that capacity.

An executor appointed by the will is a trustee of any property not disposed of by the will, so trust-law duties of loyalty apply.

Conflicts of interest

Being both executor and beneficiary is not itself a statutory breach. A conflict arises when the executor's own interest competes with their duty to act honestly, in good faith and in line with the will.

Beyond that, what counts as a breach in a given case, such as buying estate property, depends on the facts and is worth discussing with a lawyer.

What does a claim look like?

In practice, a concern about an executor is raised by an application to the Court of King's Bench. Applications under the Act are heard by a judge, and the Alberta Rules of Court and the Surrogate Rules apply to the process.

The Court must be satisfied that the personal representative refused or failed to give required notice or to perform a duty or core task. Core tasks include identifying assets and liabilities, managing the estate, paying debts, and distributing and accounting.

Accounting is often the first practical tool. A person interested in the estate can apply for a formal passing of accounts by filing Forms ACC 6 and ACC 7 and serving the personal representative. Interested persons include residuary beneficiaries and specific beneficiaries who have not received their entitlement.

Possible remedies

Removal is not the automatic result of a failure, because the Court may choose a lesser remedy. If a grant is revoked, proceedings continue, and payments and conveyances made in good faith under the revoked grant remain valid. Whether you can recover a loss from the executor personally depends on the facts and is a question for a lawyer.

What to do next

Alberta's guidance suggests trying to resolve the problem by discussion first, then applying to the Court if that fails. The Public Trustee does not get involved in private disputes about how an estate is administered.

• Write down what happened, with dates, and gather statements, receipts and correspondence.
• Ask the executor for an accounting and an explanation in writing.
• Get legal advice early, because limitation periods can limit when a claim may be brought.
• Ask your lawyer whether a surrogate case conference could help, since removal and passing of accounts can be addressed in a half-day case conference if all parties consent.

Frequently asked questions