Danger! Choose Your Executor Wisely

The DiMichele case, a 2014 decision of the Ontario Court of Appeal illustrates the critical importance of choosing an executor for your estate. Thankfully, this is an extreme example of what can go awry but the story is worth recounting as a warning.


Mrs. D died naming her son A as executor.

She will left her estate equally between her sons, A, B and C.

C and his wife had lived with Mrs. D in her home for many years prior to her death.

A was involved in some personal litigation with XCO just at the time when the administration of his mother’s estate was complete and ready for distribution. Instead of transferring to home to C as part of his share of the estate, A transferred the home to himself and then mortgaged the home in favour of XCO as security for his indebtedness. XCO eventually got a judgment against A for $1.5 million and brought a proceeding to sell the home to settle the debt.

B and C sought assistance from the Court and the trial judge declared that the home had vested in A, B and C as per the will, declared the mortgage valid and ordered the partition of the property such that the debt only encumbered A’s one-third. Foolishly C appealed that decision. The higher court re-confirmed not only that the mortgage was valid but encumbered the entire interest in the home on the basis that XCO had a bona fide interest in the property without notice of any other contingent interests. So, XCO was entitled at that point to sell the home, evict C, and collect its judgment. B and C were left to seek whatever remedy they might have based on A’s breach of his trust obligations as executor of his mother’s estate.

Hopefully you have more trustworthy children or siblings than B and C, but it is incumbent on you when preparing your will to assess your choices with care before making a selection and it also wise to monitor their particular situation over time in order that you can make changes if merited. 

This article is not to be construed as legal advice. You are encouraged to consult a professional.