When an estate has multiple executors, unless the will says
otherwise, all of them must make decisions together. This issue
often arises when an executor tries to close an investment account
and transfer its assets without involving co-executors. It is
particularly important for account holding institutions to ensure
they have a valid instruction from all acting executors to transfer
A recent Ontario case, Cahill v. Cahill, confirms that
executors are ordinarily expected to act together. Mr. Cahill
appointed two of his children ("Son A" and
"Daughter") as co-executors. His Will directed that
$100,000 be held in trust for Son B, the "investment" of
which was to be overseen by Son A alone. Son A arranged, with
Sister's consent, to put $100,000 of the estate's funds
into an investment account in his own name and control. Son A later
withdrew the whole fund and invested it in his own business, which
he lost. Son B claimed that Sister was liable for the loss of the
$100,000 by Son A. Sister argued that she was not liable because by
opening the investment account she had set up the trust that Son A
alone was obligated to oversee. The Judge disagreed, and held
Sister liable for the loss of the $100,000. The investment account
was not a trust for Son B and Sister had been inappropriately
passive in relying on Son A alone to set the trust up.
The points to take away are:
Executors must usually act
An executor should not passively rely
on his or her co-executors. Rather, executors are to actively
discharge their duties, including properly overseeing the conduct
It is particularly important to be
sure that all executors have signed off on decisions to transfer
Many Wills have a "majority
rules" clause. These clauses apply when executors disagree
about a particular decision, and do not allow a majority of
executors to claim the right to administer an estate without any
involvement of their co-executors.
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