Most Ontario wills say nothing about how much the executor should be paid, leaving compensation to be worked out later under the Trustee Act's "fair and reasonable" standard. But some testators do the opposite: they set executor compensation directly in the will, naming a specific fee or formula instead of leaving it open. This is legal, and it changes the process in some important ways.
If you're drafting a will and considering this approach — or you're an executor trying to figure out whether a clause like this applies to you — here's generally how it works.
Can a Will Really Fix the Executor's Fee?
Yes. A testator is generally free to state, in the will itself, what their estate trustee should be paid for taking on the role — whether as a flat amount, a formula, or a reference to a specific rate. Where the will does this clearly, that provision generally takes the place of the statutory "fair and reasonable allowance" analysis a court would otherwise apply.
Why Some Testators Choose to Do This
- Certainty. It removes ambiguity about what the executor is entitled to, which can reduce the risk of a dispute with beneficiaries later.
- Reflecting a personal relationship. A testator may want to compensate an executor more generously — or, occasionally, more modestly — than a court's standard analysis might produce, because of the relationship or the specific demands expected of the role.
- Simplicity for a straightforward estate. For a modest, uncomplicated estate, a fixed fee can avoid the cost and effort of a later compensation discussion entirely.
How a Fixed Fee Clause Generally Works in Practice
| Situation | What Generally Happens |
|---|---|
| Will states a specific dollar amount or clear formula | That amount generally governs, without a separate "fair and reasonable" court analysis |
| Will is silent on compensation | The Trustee Act standard applies — a "fair and reasonable allowance" set by consent of beneficiaries or by court order |
| Will's compensation clause is unclear or ambiguous | Interpretation may be needed, and a court could be asked to clarify what the testator intended |
Possible Downsides of Fixing Compensation in the Will
A fixed clause isn't automatically the better choice for every will:
- It can become outdated. A fee that seemed reasonable when the will was signed may no longer reflect the actual scope of work by the time the testator dies, especially if the will sat unchanged for many years.
- It doesn't flex for complexity. If the estate turns out to be far more complicated than expected — litigation, a business to wind down, a property dispute — a fixed fee set years earlier may not reflect the real burden on the executor.
- It can still be challenged in limited circumstances. While a clear compensation clause is generally respected, disputes can still arise over its interpretation or its fairness in unusual situations.
What If the Named Fee Turns Out to Feel Unfair?
If an executor believes a fixed fee in the will is inadequate for the work actually required, or a beneficiary believes it's excessive, the starting point is usually to look closely at what the will actually says. Some clauses set a true fixed amount, while others set only a minimum or a starting formula that leaves room for a supplementary claim. This is a fact-specific question best reviewed with a lawyer rather than assumed either way.
Considerations When Drafting This Kind of Clause
If you're making a will and thinking about addressing executor compensation directly, it generally helps to:
- Be as specific as possible about the amount, formula, or rate intended
- Consider building in some flexibility for estates that turn out to be more complex than expected
- Revisit the clause periodically as part of your regular will review, alongside the rest of your estate plan
Frequently asked questions
Does a will have to address executor compensation?
No. Most wills say nothing about it, in which case the Trustee Act's general "fair and reasonable allowance" standard applies instead.
Can beneficiaries challenge a compensation amount that's fixed in the will?
It's possible in limited circumstances, but a clear, unambiguous compensation clause is generally respected as reflecting the testator's intentions — this differs from a court-set fee, which is open to a broader "fair and reasonable" review.
If the will sets a low fee, can the executor ask for more?
This depends heavily on the exact wording of the clause — whether it was intended as a complete answer or just a starting point — and is a question worth reviewing with a lawyer before assuming either way.
Should every will include a compensation clause?
Not necessarily. It's a reasonable option for some testators, but leaving it to the statutory standard is also a valid, common choice — the right approach depends on the specific family and estate.
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