Under what circumstances may a will executor change or go against the terms of a will?

When an individual’s will is prepared, he or she will usually specify whom they wish to be appointed as the executor/trustee to handle the administration of the estate when they pass away.

It is the legal duty of the executor to carry out, to the best of their ability, the directions expressly outlined in a Last Will & Testament. The executor is appointed to settle an estate, ensure that the deceased’s intentions (as expressed in their will) are carried out, and are required to protect the rights of the beneficiaries.

Other duties of the executor may include paying any outstanding bills left by the deceased, taking care of funeral arrangements, closing out bank accounts and dealing with any other finances, etc.

When an Executor Has Discretion

The amount of discretion an executor can use when settling an estate will largely depend on the language of the will itself. In some cases, the deceased’s will can give the executor the power to use his or her own discretion in certain areas.  For example, if the deceased intended for the executor to have the discretion to sell, call in or convert assets to cash prior to distribution, this may be expressly and explicitly outlined and authorized in the will.

However if there are specific directions in the will, the executor is bound by law to follow them. In these cases, each step is explicitly planned out and it is the executor’s duty merely to complete the steps. Having said this, an executor is usually given fairly wide latitude in protecting the estate’s assets. Courts will often refuse to remove an executor when a good-faith mistake is made.

What if the Will is Unclear?

It can be the case that a deceased’s will is unclear and the executor is unsure as to what they are permitted to, or required to do with an estate asset.

Consider this:

• “A” is appointed executor of their best friend’s estate (“B”).
• “B” passes away and has two kids (“C” and “D”).

B’s Will provides for the family home to be left to only C provided the reasonable and necessary repairs and upgrades are made within one year. Failing which, the family home must be distributed to C and D jointly.

What does reasonable mean? What does necessary mean? What repairs, what upgrades? Who evaluates whether or not these repairs and upgrades are completed within the year? How is this evaluated?

In these cases, an executor has the option of seeking clarification from the court, to assist with the interpretation of the will prior to the distribution of the family home. Now, given that there is only a one year time period, this would have to be done relatively quickly but it can be done.

Here, the court can assist with determining what the deceased’s intentions were regarding the property.

To continue with the example above, B may have told her lawyer that a new roof was needed and new windows and electrical wiring were needed in order for the home to be safe to live in (in B’s opinion) and that B wasn’t sure if C could afford to pay for these repairs and upgrades alone or could carry the family home mortgage alone.

In these situations it is best for an estate trustee to consult with a lawyer as this may be a situation which could give rise to a dispute involving the ownership of the property.