Can You Sue an Executor for Breach of Duty in Alberta?

If you are a beneficiary and the estate has lost money because of what the executor did or failed to do, you may wonder whether the executor can be held to account. Executors hold a position of trust, and Alberta law sets out the standard they must meet.

This article explains those duties, what a breach can look like, the remedies the Court can order and why timing matters. Every estate is different, so a lawyer should look at your documents before you act.

This article covers the law of Alberta.

The duties an executor owes

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. Their core tasks include identifying assets and liabilities, managing the estate, paying debts and distributing and accounting.

What a breach can look like

Whether conduct amounts to a breach depends on the facts. These are examples of the kind of conduct people raise, each measured against the standards above:

• Failing to distribute the estate as soon as practicable without good reason.
• Failing to account as the Rules require.
• Failing to give a required notice.
• Putting the executor's own interest ahead of the duty to act honestly, in good faith and in line with the will.

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.

Remedies and personal liability

On application, if the Court is satisfied that a representative has refused or failed to perform a duty or core task, it may order them to perform it, impose conditions, remove them, revoke a grant or make any other order it considers appropriate. Conditions can include security. Removal is only one option, not an automatic result.

Whether a representative must personally compensate the estate for a loss, and in what amount, depends on the facts and the law that applies, and a lawyer can advise on that. Some Trustee Act provisions apply to personal representatives, with an estate treated as a trust and a will treated as a trust instrument.

A representative who obtains court direction on a question and acts on it is deemed to have discharged their duty on that matter. That protection does not apply where the direction was obtained by fraud, wilful concealment or misrepresentation.

Time limits and the practical route

How long you have to bring a claim against an executor depends on your situation, so it is worth confirming with a lawyer early rather than waiting for the estate to wrap up. Some proceedings have their own periods. For example, a family maintenance and support application must be commenced within 6 months after the grant of probate or administration is issued.

Government guidance says to try discussion first, and if that fails, you or your lawyer may apply to the Court. The Public Trustee does not get involved in private disputes about how an estate is administered. Applications under the Act are heard by a judge, and the Alberta Rules of Court and Surrogate Rules apply to the process.

Formal accounts can help you see what happened. A person interested in the estate can apply for a passing of accounts by filing Forms ACC 6 and ACC 7 and serving the representative. With two or more executors, they must act unanimously unless the will directs otherwise or the Court orders otherwise, and a co-executor can apply to remove another who is failing in their duties.

What to do next

• Collect the will, the grant, bank statements, correspondence and any accounts you have received.
• Write down a timeline of what happened and when you learned of it.
• Ask the executor in writing for an explanation and an accounting.
• Do not delay in getting legal advice about time limits.
• Ask a lawyer whether to seek a passing of accounts, removal or another order.

Frequently asked questions