Listen to The Question of Compensation and Complaints.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.
Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
Listen to Cases for Increasing and Decreasing Compensation.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss cases for increasing and decreasing compensation.
Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
A person with more than one set of distinct interests or roles in the same estate may have a conflict of interest. This can create all sorts of problems and issues in an estate administration and is a driving concept in much estate litigation.
Say Joe Smith is the executor of an estate but also received gifts from his mother the testator during her lifetime. One of these gifts, say, came in the form of a transfer of a bank account into joint ownership between the two of them.
Wearing his executor's hat (to use some traditional vernacular), Joe may have a duty to determine whether the bank account transfer was not a gift at all and actually subject to a resulting trust in which case the estate might have a claim to the asset. Joe may need to do so because, as executor, his duty is to identify estate assets and bring them into the estate.
However, wearing his hat as a recipient of the bank account, Joe is unlikely to want to give the bank account back to the estate.
In short, Joe may have a conflict of interest.
In such circumstances, Joe may need two lawyers, one to advise him as estate trustee, the other to protect him personally. Sometimes an executor’s conflict is such that he cannot continue to act as estate trustee.
While this example may be simple enough, there is a tremendous range of conflicts that can creep into estate matters.
Thanks for reading.
Sean Graham
Yesterday, we read about Franz Kafka's unfulfilled wishes with respect to his manuscripts, both published and unpublished, at the time of his death in 1924. Flash forward eight decades or so. Dmitri Nabokov, the 73 yr old sole surviving heir of Vladimir Nabokov, continues his 30-yr struggle with his father's deathbed request that his last unpublished work, The Original of Laura, be destroyed. The stakes are high for Laura; at one point, Dmitri referred to it as "the most concentrated distillation of [my father's] creativity." The task of burning the manuscript was originally entrusted to Vladimir's wife Vera, but when she died in 1991 she had not yet carried out her husband's last wish.
As discussed in the Business Standard, those in favour of heeding Nabokov's wishes are not willfully destructive. It is understood that great writers might work through countless drafts before arriving at a final product that meets their approval. On the other hand, there's the argument that writers (including Kafka) seldom can judge their own work.
The long twisted saga may find its fate as a cliffhanger of sorts. In a dramatic verdict, Dmitri indicated late last month that he had indeed "decided to make a decision" about what to do, but that he would "neither disclose publicly either the decision or the deed." Apparently (or should I say apparition-ly?), Dmitri reached his decision after an imagined ghostly conversation with his dead father. Stay tuned for the future unveiling of either a box of Laura's ashes or what might be Nabokov's greatest literary work.
David M. Smith
Listen to Executor Obligations
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what to anticipate as an executor and how to ensure that you are well prepared for your duties.
A common area of complaint stems from an allegation that the executor or trustee was negligent in his or her efforts to administer the assets of an estate or trust. For a comprehensive discussion of the personal liability of trustees, see Maurice C. Cullity, Q.C., "Personal Liability of Trustees and Rights of Indemnification", (1996) 16 E.T.J. 115.
Generally speaking, most claims or objections to accounts arise out of what is perceived by beneficiaries to be negligence or failure on the part of the executor or trustee to maintain a proper standard of care and skill in his or her office. The most common complaints arise out of the following situations:
Surcharging of Accounts
A "surcharge" alleges an omission for which there ought to be credit in the accounts. The most frequent surcharges relate to undervaluation of assets, assets not accounted for, non-disclosure of an asset and, in some cases, the incorrect recording of an entry.
Falsification of Accounts
A "falsification" alleges an item on the debit side of the accounts to be either wholly false or, in some part, erroneous. A claim against the estate which does not exist or is not realistic, or a payment by the estate of an account which is excessive, and in some cases, the incorrect recording of an entry, are all examples.
While the above does not purport to be an exhaustive list of the areas of negligence, we hope it serves as a useful starting point nonetheless.
All the best, Suzana and Ian. --------
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