Q: My sister and I farm our parents’ land. After my parents died, she and her spouse moved into the family home. In our parents’ wills everything was left to us equally. However, things haven’t worked that way.
First, there was the problem of valuing equipment. I wanted a farm auction, but my sister had an auctioneer come and haul out many items and sell them at his auction service. Other equipment and tools in the shop were never valued. Further difficulties resulting from deciding how to divide the land. We even consulted a surveyor. To add to the equation, the lawyer who handled the estate is a friend of my sister’s and also involved in farming. What is the point of a will if it is ignored?
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A: First you need to look at the will. Who was appointed the executor? It is the executor’s job to ensure that the terms of the will are followed.
You indicate that the will required equal treatment of you and your sister. Does this mean that you each get half the farm and half the other assets, or does it mean that the executor has to ensure that each sibling gets half of the overall estate? Thus one sibling could get more of the land, but less of the proceeds from the machinery. Again, we would need to look at the actual wording of the will.
Generally, a will gives executors wide discretion in deciding how to carry out their duties. So for example, the executor will have the power to decide whether to hold an auction, dispose of machinery by private sale or distribute the machinery to the beneficiaries. This does not mean that executors can act as they please. Executors are trustees of the property and must act in a manner that a cautious owner would. They must also act in the best interests of the beneficiaries. Further, under a process called accounting, any person having an interest in the estate can ask executors to account to court for the handling of the estate. That can include providing statements of the assets and liabilities of the estate, money and assets paid, including what is transferred to beneficiaries and other information that may be required by the court. In extreme instances, executors can be removed for misappropriating assets or ignoring the terms of the will.
If there are joint executors and they can’t agree on a course of action, a court ruling might be necessary.
You also make reference to the lawyer being a friend of your sister. Friendship alone does not mean impropriety. In many rural communities, I suspect the local lawyer may indeed be on good terms with many residents. However, if there is a question regarding unprofessional conduct, the matter should first be raised with the provincial law society.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
