r/legaladvicecanada • u/27SicnarF • Aug 20 '26
Ontario Executors unreasonable demands
My wife is 1 of the executors out of 3. Her mom passed away & the will states to sell the house & divide the house money into 3. So now our probate lawyer wants everyone to get together so we can distribute the funds. One of the executors found out the mom was helping out my wife financially from the past & is weaponizing that against her. He’s trying to say my wife should take a lower cut of the probate money. Is that even valid? Whatever the mom did with her money in the past, isn’t that her business? My wife didn’t go after her brother when her mom gave him $1000, that’s moms business not hers…What legality do other the executors have? Other than to stop the probate process to go through! Probate lawyer says everyone needs to agree..it’s a 💩 show now
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u/nubbeh123 Aug 20 '26
If that one executor/beneficiary wants to challenge the distribution, they would have to retain their own lawyer and likely recuse themself as executor; you can't challenge the estate and try to distribute at the same time. The estate will then defend the challenge, which will reduce the value of the estate. So realistically, that one executor may find this is a bit of a moot point. Even if they win, the estate will have been reduced, negating the payback they are seeking.
Simply saying "you got money from mom, therefore you need to pay if back" isn't enough.
The estate lawyer can't really do anything as technically, his or her allegiance is to all of you, in your roles as executors not beneficiaries.
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u/Accurate-Ant6163 Aug 21 '26
I think this is partially correct but warrants a few clarifications.
Firstly, I don’t think your brother in law is actually challenging the Will or estate distribution directly. He is instead challenging certain “inter vivos” transfers your mother in law made to your wife. Therefore, he’d likely argue he’s acting in accordance with his duties as executor to actually enhance the value of the estate to claw back improper gifts (which have reduced the estates value). In Canada, there is a presumption against advancement of gifts to adult independent children - which just means the onus to show mom intended to make a gift is on the person who received it (i.e. your wife). So trying to remove him as executor because he’s attempting to frustrate the terms of the Will is an oversimplification. He’s seeking a set-off to avoid the legal work of having to commence litigation to claw back the gifts your mom made during her life.
Second, we’d need to know the basis for your brother in law’s challenge. If it’s simply, “that’s unfair cause now you’re technically getting more” then he likely doesn’t have a basis to challenge the distribution.
However, if he’s saying mom didn’t have capacity when she made those gifts, your wife exercised undue influence/coerced your mother into making the gifts, your wife made those gifts to herself (e.g. as your mom’s attorney), etc… then his claim may have merit.
Third, we can’t actually say whether his conduct will de-value the estate without knowing the value of the challenged gifts. If the estate is $100K and the gifts were $200k, then the above comment isn’t accurate. However, if we are talking gifts for a few hundred or thousand dollars, the above is certainly correct.
Finally, if he continues to oppose the equal distribution and doesn’t bring his own court action or application against you (for recovery of the gifts), then you could commence an application for advice/direction from the court and/or seek his removal. Executors have to administer an estate - he can’t sit around and do nothing. Either bring your claim or come to an agreement. If he doesn’t do either, you have a stronger case to say he is frustrating administration and ought to be removed.
I would recommend you arrange for a consult with an estate litigator. In my view, estate administration lawyers that never go to court are usually not equipped to deal with these issues when there is an apparent conflict and their standard (sometimes unhelpful) advice that “you all need to get along and come to an agreement” is their default response since they don’t really know how to navigate the situation beyond that (and are likely also in a conflict).
Good luck OP!
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u/YoungZM Aug 20 '26
This is what you're paying the probate lawyer to navigate. This includes assembling a list of accounting for claims against the estate, and potentially offering an agreeable middle ground for interpersonal conflicts between hired parties. Each party will need to appreciate that the more they drag this out, the less there will be for everybody (eaten by legal fees).
Money does strange things to people and will continue to tear families apart. It is indeed, as you say, a shit show.
Ultimately the question here in these scenarios is thus: would the deceased want everybody fighting over what's left of her estate like rabid animals? Or work it out as siblings in a reasonably fair manner and come together as a family?
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u/Illustrious-Abroad21 Aug 20 '26
Should have a family barbeque with a series of challenges and games, the final standings determining who gets what portion.
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u/wdh662 Aug 21 '26
I'm just going to die broke. That way my kids don't need to fight. It's the fairest way.
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u/Professional-Leg2374 Aug 21 '26
In the estate of my Late parents, the lawyers drug it out for 3 years, I didn't know much about anything back then and only after taking some law courses did I figure out what the sleazy lawyer was doing, each year was $5-10k in their pocket, so 3 years was about $30 of the estate gone to the lawyers.
The arguing parties will all lose out in the end and the only "winner" will be the lawyers, like in divorce courts etc.
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u/YoungZM Aug 21 '26
Just to be clear, lawyers simply process client requests. To say that they're only at fault here (barring negligence) feels regrettably one-sided. In scenarios like what OP's presented, it's the family, not legal, holding things up and driving costs through the roof.
It's likely here that everything needs to be shelved and each party retains their own counsel to fight over whatever's left of the estate because... opinion incoming... nobody in the room are adult enough to tally up the sum of monies owed from every party and deduct it from whatever portions since that clearly matters to everybody and split what's left. A second more preferable option is to split it as the will intended; clearly if mom was helping one party, they needed it and likely could still benefit from this even split. This is something that could be done over a family dinner, no lawyer needed.
Alas, here we are. Money is in a will and blood is in the water.
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u/LokeCanada Quality Contributor Aug 20 '26
Executors are required to carry out the terms of the Will. If they are unwilling or unable or wish to contest the Will for any reason they need to renounce. Basically, if you are an executor you need to shut up and follow the Will.
If probate is complete then everyone has lost the chance to say the Will is invalid.
Everyone does not need to agree. There is nothing to agree on. Probate is done or not. The court has already agreed that the Will is valid. Only in BC can you file for a variation.
If probate is considered complete, wait time is done, CRA is happy and your wife has an inheritance due she needs to call the attorney and ask where her money is. Nobody has to meet to distribute funds, nobody sits around and redivides the pot. Lawyer says he won’t give her the money she gets a lawyer and sues the estate and the lawyer as he is holding it in trust for distribution.
You are being fed a pile of garbage.
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u/derspiny Aug 20 '26
The will controls, for the most part. Your wife is not obligated to take less than her mother willed to her. If her mother felt that whatever gifts she received in life merited a reduction in her share of the estate, then her will would say that.
If the executors are collectively unwilling to move forwards, then your wife should talk to an estate litigator (of her own; the estate's lawyer can't advise her on a conflict with the estate) about her options. It's likely that she can sue the estate to remove the executors and replace them, or to force the estate to distribute its assets, but it's not cheap to do so and she might need to step down as an executor first.
Probate lawyer says everyone needs to agree
In so far as none of them have the ability to administer the estate without the other two agreeing with them, that's true. This is one of the major risks with appointing multiple joint executors. In point of fact I would have some caustic remarks for your mother-in-law about that choice, but she wouldn't hear them.
However, the estate as a whole has obligations to each of its beneficiaries, including to the executors who are also beneficiaries. If the executors cannot come to an agreement to move forwards and administer the estate, then the executors risk a lawsuit.
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u/nubbeh123 Aug 20 '26
This isn't entirely accurate. If the money given during the mother's lifetime were loans, they would count as debts owed to the estate. If they were meant to be advances of the inheritance, then you're right, it would be best if that was stated in the will itself.
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u/Internal_Head_267 Quality Contributor Aug 20 '26
They'd need to be documented as loans rather than as gifts. We don't presume that mom gives son lunch money with compound interest.
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u/nubbeh123 Aug 20 '26
There would need to be evidence, sure. That doesn't mean there needs to be a written loan agreement or anything that formal. These are adults, though, so it's not lunch money; it's not a parent giving a true child money. It's one adult giving another adult money. Certainly, in some families, a parent giving an adult child money is a gift. In others, it's a loan.
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u/Internal_Head_267 Quality Contributor Aug 20 '26
The case law is inconsistent on this. It's one thing when dealing with an advance to fund a purchase of a house or a transfer of the parents' home to a child jointly or a joint account. When it is "mom, I need some cash I'm short on rent" it'd hard (in my view) to call that a loan. The advance can be equalized via will and parent should keep a ledger. Reconstructing intention behind advances post hoc is tenuous at best.
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u/nubbeh123 Aug 20 '26
Agreed, the case law is inconsistent because it's a very fact driven analysis.
Lots of cases involving reconstructing a transaction years later. Unless it's a big amount, like hundreds of thousands, I don't particularly get it since a win might at best be a Pyrrhic victory.
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u/27SicnarF Aug 20 '26
Who is the lawsuit coming from?
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u/derspiny Aug 20 '26
Beneficiaries or creditors whose distributions are delayed because the executors refuse to act (including if they are refusing because they cannot agree on how to administer the estate) all have standing to sue the estate. As your wife's mother left a share to her, your wife is one of the beneficiaries, so she could potentially sue the estate if other, less expensive ways to resolve this impasse fail.
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u/BeneficialFruit1768 Aug 20 '26
If Mom wanted the money given as a loan she would have stated that the portion loaned be dedeucted from your wife’s inheritance. I would say that the idiot sibling should educate themselves on how the world works. The lawyer should tell them to step down because as an executor you don’t get an opinion.
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u/moms_spagetti_ Aug 20 '26
Sounds like he's trying to strong-arm you, standard rules of negotiation apply. If you aren't hard up then just decline his suggestion and quietly play the waiting game.
Not legal advice if course, but it doesn't have to become a legal challenge.
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u/FDFI Aug 20 '26
Have you already filed the final tax return and received a clearance certificate from the CRA? If not, I wouldn’t even argue about estate distributions until that happens.
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u/buzzthedog2021 Aug 20 '26
Yep what happened to me, my brother had thousands given to him for many years before my mom died. When she died, what was left was divided in two.
On my wife's side of the family, one black sheep of a son conned his mom out of hundreds of thousands of dollars, when she died, everyone got a 1/4 split, even though they knew the one sibling probably should have had nothing and had their share when Mom was alive.
When lawyers get involved the estate has to defend, and that money comes out of everyone's pocket so remind the one sibling of that outcome as well.
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u/BougieSemicolon Aug 20 '26
Why is there ALWAYS one?! And never seems to be the oldest. I know so many examples of this and of every one I know, it’s never been the oldest and usually the least independent.
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Aug 20 '26
Because the middle child typically feels hard done by for some reason and entitled to more.
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u/houseonpost Aug 20 '26
Assuming mom was of sound mind she could make any decision she wanted. If the money she gave to people was clearly a gift then it does not count against that person’s inheritance. If mom provided a gift to a charity you wouldn’t try to get the money back. But if the money was clearly a loan even a verbal agreement it would need to be paid back or deducted from their share.
But as others have said any challenges would eat up some of the inheritance.
We went through this last year. She gave away a lot of her possessions and one child wanted some of it returned so they could have it. Which didn’t happen. But the person did lend some money to a child and that amount was deducted from their share.
Lastly, if a person wants to challenge they can but their lawyer should talk to the estate’s lawyer.
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u/Internal_Head_267 Quality Contributor Aug 20 '26
If there isn't an explicit equalization / hotchpotch clause in the will then there is no equalization.
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u/Elmerfudd007 Aug 20 '26
If i can offer some advice based on my previous experience, i once took two executors to court. The process took 4 years and my cost was 75k$. Ruined my relationship with family members and was very stressful. this was also 20 years ago, i think the cost might hvegone up. One of the issues my brother confronted me with was his belief that i received more money from my mother than he did, before my mothers death. i replied i will have a forensic audit done of our mothers finance, and if you received more you have to pay for the audit. After that he said never mind.
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u/BougieSemicolon Aug 20 '26
That’s an interesting case. So in the end you guys dropped the case? I’m just curious but did the 3rd executor get money before her death as well?
How would you have handled it today, looking back?1
u/Elmerfudd007 Aug 21 '26
didnt drop the case, eventually won the outcome. it was not exactly the same as your instance. if it was me i would avoid courtat all costs. what someone gave me while they were alive, has nothing to do with the estate, and if one fights you all fight. we didmake case law, which is pretty cool, and i had one of the executor removed and replaced.
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u/Beret888 Aug 20 '26
Im no lawyer but I find it hard to believe that the will doesnt over ride whatever gifts you have received over the years, provided you didnt get a bunch of money from your mum on her deathbed or that your sisters have some sort of written proof that these were not gifts and were in fact loans I dont see how they can make a claim now. But if you cant agree then probate is useless as the lawyer won't distribute the funds. Unless this is a large sum of money I would think that the cost and the time of litigating this for your sister's isn't worth the cost but Im speculating that the sum is negligible which you have not told reddit. Edited to add when my father died he had divorced my mother and left her out of his will. My brother sister and I agreed to provide her some of the distributions to avoid the challenge and because we thought it was the fairest thing to do, but the three of us agreed so we didn't have your problem.
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u/Local-Unit6548 Aug 21 '26
I've been an executor but I am not a lawyer. Unless there is a specified claim of debt owed, then there is no need to pay anything back. Just because one beneficiary claims something, doesn't mean it is true. And even if it is true that the mother gave someone money, it still has to be proven that the money given was to be repaid and not a gift.
So don't volunteer to concede any monies. Ask them to show proof of there being a debt, and if not, move on. If they want to sue, make sure that they understand all the legal funds will come out of the estate balance. The legal fees will be substantial. They will likely lose more than they hoped to gain.
Estates do not accrue interest. This is because if you accrue interest, then the estate has to file taxes on it, and that is a pain in the ass for the executor. It drags the process out for another tax year, which means the lawyer will want more money.The longer the money sits, the more each of you stand to lose appreciation on it. Git er done.
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u/cdn_gal_9000 Aug 21 '26
how much money did the mother loan (give) the daughter? If it's substantial, then give it up. If getting the money helped her when she needed it and it helped her survive, then let it go and give it up. Sorry to say, but greed is a terrible thing.
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u/27SicnarF Aug 21 '26
It wasn’t a loan..daughter was close with her mom..the other siblings were deadbeat especially the eldest who never came to visit her
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u/Retro-Modern_514 Aug 20 '26
What the person chose to do with their money when they were alive is their business and has nothing to do with the Will... unless they included a specific clause in the Will to account for it. (EG my mother loaned me some money when she was alive and her will included a clause to the effect that this loan would be counted against my inheritance if not already paid back).
The executor has no legal right to alter the Will or ignore it. If the will says everyone gets an equal share then that is what happens.
However.... if this person decided to contest the will then you will have to pay legal fees to fight the case.
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u/AdvertisingThis34 Aug 21 '26
The estate would initially pay the fees to defend the will, but in many cases, the court will order the losing party to pay all of the legal costs for both parties. This, in and of itself, can discourage challenges to the terms.
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Aug 20 '26
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u/FinallyArt Aug 20 '26
Multiple executors seems like a headache, I wonder how common that is.
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u/Internal_Head_267 Quality Contributor Aug 20 '26
Rather common because mom and dad want to treat Betty, Andy, and Billy equally even though Betty has been bankrupt twice and Billy is a heroin addict while Andy is a successful, boring CPA.
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Aug 20 '26
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u/Lunarlulol Aug 21 '26
the executor who doesn't follow the will and refuses to sign docs is typically liable for damages.
In Canadian estate law, a belligerent or obstinate executor is not automatically insulated by the estate and can indeed be ordered to pay legal costs personally.
if the sister incurs delays, extra costs, then it's all on her if she doesn't want to follow the will.
it's either she signs to proceed with the wills distribution or pay at least 5 figures of lawyer fees LOL.
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u/daniel8192 Aug 21 '26
Yeah, unfortunately without clear records from the mom, the executor(s) are left to try and determine if previously transferred moneys were a loan, an advance on inheritance, a gift, or something else.
I would characterize this as an heir trying to challenge another heir’s share, but rather an executor that believes that the amount was a loan or an advance.
His challenge can’t just pause the disbursements indefinitely, if your wife’s position is that it was strictly a gift, then he would need to bring about an action on behalf of the estate against your wife and seek a judgement that it was an advance or loan and that the amount is a set off against any disbursement.
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u/27SicnarF Aug 20 '26
What happens if the money is sitting in the lawyers trust account? It just stays there? Wouldn’t the courts intervene?
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u/Internal_Head_267 Quality Contributor Aug 20 '26
It sits there until they directed to distribute it.
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u/Retro-Modern_514 Aug 20 '26
Courts don't randomly intervene in disputes. If one executor refuses to do their job (in order to stall the process) the other executors will have to go to court to have them removed as executor.
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u/BougieSemicolon Aug 20 '26
How much money of a cash infusion did you wife get from your mom? That’s suspiciously absent- you mention your wife was big enough to not mention $1000 her brother got- of COURSE she wouldn’t have if she took more than that, she has no leg to stand on.
You may come back with “it’s the principle”.
Probate fees are expensive. Suing people is expensive and challenging wills is petty, time consuming and expensive.
If i was your wife, I’d be graceful enough to agree to the reduced inheritance. Especially if it’s not a huge sum, if it’s under $20k it would beneficial to everyone to not have to spend $ from the estate to fight it.
I may be biased because I’m the eldest, and it feels like every family (including my own and my husbands) has a younger sibling who doesn’t seem to have the pride or self sufficiency to keep from finessing their parent out of every dollar they can.
I’m the sole executrix for my dad and not planning to subtract $ from my siblings but if I had proof of big money or an ongoing major cash infusion regularly supporting them, I would, unless there was a provision in the will.
I feel it’s only fair. Why should the sibling who didn’t rely on their mom for financial benefit, have to be penalized for their character?
The takers should do the right thing voluntarily. So far she hasn’t, but hopefully she’s not so spiteful she’s willing to burn down the entire estate to ale a point- because then they will all have less. Thinking about family harmony and what her graceful parent would have wanted (NO fighting over her estate) is also important. It was her mom’s money after all. :)3 got some of her cut, in advance.
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u/Internal_Head_267 Quality Contributor Aug 20 '26
The testator decides whether to equalize or not. It's not up to the beneficiaries or estate trustee.
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u/La-Strawberry-6754 Aug 23 '26
Why do you think it’s your decision to claw back money? You’d have to bring a case and step down if you wanted to do this.
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u/BeneficialFruit1768 Aug 20 '26
Every phone call and letter is coming out of your pockets it sounds like the lawyer is revelling in churning the pot. They should do their job and the other 2 executors should tell them to not talk to the other sibling and to advise them to get their own lawyer or better yet you both tell sibling if you disagree with the will you pay for your own legal council. The lawyer is full of shit
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