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Answered in 3 hours by:
11/18/2010
Tom B., Barrister & Solicitor
Category: Canada Law
Satisfied Customers: 2,416
Experience: 25 years in practice
VerifiedTom Bulmer :
No.
Tom Bulmer :
What they are doing is protecting themselves against any claim you may have against them personally as a result of offering you a payment prior to matters being finalized. If theire are any other beneficiaries, they should also agree that a payment to you does not make the executors PERSONALLY liable if at the end of the day there is not enough money to go around as an example.
Tom Bulmer :
They are protecting themselves personally if such a payment to you causes a problem for the Estate. But, they cannot opt out of their responsibility to follow the Will. The Will is paramount.
Tom Bulmer :
As you mentioned, the taxes are not paid.
Tom Bulmer :
So, they seek an indemnity from you that you will not go after them personally if there is not enough money to go around at the end of the day. But, you can still sue the estate and hold the trustees accountable for their actions as trustees. You will not however be able to sue them personally to recover any money from them personally that you did not receive from the estate.
Tom Bulmer :
It is a cover their backside clause that is worded poorly. I assume they want you to pay the estate back if by some chance you are over paid but that indemnity is not clear to me as they have written it.
Tom Bulmer :
So, if you do not get your inheritance as per the Will, you have recourse against the estate but you cannot sue the executors. All such claims are fact based however and the waiver is no good if there was fraud. The executors are still duty bound to follow the Will in a trust situation.
Tom Bulmer :
Tom
Customer:
So I can go after them if they made a mistake as trustees but not personally..what's the difference? Can you give me an example of a situation where I could go after them personally not as trustees as it relates to my mother's estate?
Customer:
So I can't go after them personally but only if they are negligent in their role as trustees. Can you give me an example of how I could go after them personally not as trustees as it relates to my mother's estate and how I could go after them as trustees not personally. Also before my mother died we drew up a list as to who would get what in terms of material items from her house. I was suppose to get the grand piano but at the time had no where to put it so my brother said he would take it. He has since come to me to give it back but he wants to include it as part of my inheritance (it wasn't included as part of his before when he wanted it) None of the items from her house are causing their inheritances to be reduced just mine with that piano. We decided amongst ourselves who would get want and since I am not in my brother's best wishes I got very few items. He wants to reduce my inheritance named in the will by the amoung he thinks the piano is worth ($4000). So instead of getting $100,000 I am now getting $96,000. When he wanted the piano his portion of the inheritance wasn't reduced so I don't think it is fair that I should take a reduction as he didn't plus the other items from the house aren't being treated this way. He got most of the furniture and art but none of it is causing his inheritance to go down. I doubt that I will even get what was agreed to because he has everything and we are not on good terms. I can't locate the document he sent out showing who was getting what. Also he decided for me what I should get I didn't have a choice. What can I do about this situation?
A trustee has to follow the Will..period. But, it is common that there is a list of things that a testator would like to leave to someone that is not really a part of the Will. I suspect the piano is one of such items where it is desired that you get it but not required you get it.
Whether you get the piano or not is an extra. You get what the Will states you get with no deductions.
IF you sign the waiver you cannot (maybe) easily sue them personally. You could always sue the estate. But, the estate has the right to defend and therefore the value can be reduced by legal fees. All of you are the estate it is just that you are taking a piece in advance of matters being settled.
Whether you get the piano or not is an extra. You get what the Will states you get with no deductions.
IF you sign the waiver you cannot (maybe) easily sue them personally. You could always sue the estate. But, the estate has the right to defend and therefore the value can be reduced by legal fees. All of you are the estate it is just that you are taking a piece in advance of matters being settled.
Tom B., Barrister & Solicitor
Category: Canada Law
Satisfied Customers: 2,416
Experience: 25 years in practice
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