Five Family Members as POA "Attorneys" and Executors

[Toronto Guy]

Thank you very much Sarah for your thoughtful and informative reply. I will of course confirm with my lawyer that similar laws and procedures apply in Ontario (as I expect they do). With this understanding of the liability risk to co-executors, I think the risk in my case is small given that all executors and beneficiaries are close family members. If there is no way around all five signing all documents, I expect the group will likely decide to simplify the process by having two or three persons stand down (I think the legal word is renounce).

Sarah, in your first post in this thread, you suggested that (if Ontario laws permit) I might " assign small decisions to be made 'jointly and severally' and large decisions (listed) to be made jointly". I would like to include such wording in my will and in by two POA documents (for Property and for Personal Care). But I would like to limit this to more of a guiding principle than a binding requirement. Again, I would prefer to trust to the judgement of the five than to guess now what they will need to do.

For my POA for Personal Care, I would want each of the five family members to know they had my permission to act immediately without consultation in an emergency situation no matter how important. But in the other two documents, I would want to encourage them to err on the side of consultation whenever they were in doubt. I know I could just speak to each person about my wishes in advance or put my thoughts in a letter, but I think these principles will be more salient if included in the will and POAs.

The wills and POA documents I have seen appear to contain only clear and binding clauses. I wonder if you, or any other forum participants, have encountered wills or POAs that include non-binding principles either identified explicitly as such, or perhaps with wording in the duties of executors/attorneys section something like "My executors/attorneys will, to the extent it is reasonable and practical, ...." ?

Also, if I can trouble you with one more question. I know my lawyer must be concerned about his liability if he produces a will or POA documents that don't work. So I expect he will want to be conservative and stay as close as possible to the tried and true. I expect he may want to charge me for the extra work he does both to develop non-standard wording and to check that this wording is legally safe and effective. Have you any suggestions that might help me in working with him?

Thank you again for your many helpful comments. I am very impressed with this forum and the benefit it must be to many Australians. I am also impressed with (and thankful for) the hospitality you are showing me.

 

[Sarah J]

Hi Toronto Guy,

I'm glad you found our responses of assistance.

1. The purpose of a will is to make your wishes as clear as possible so that once you pass, your executors (and the court) will know exactly what your wishes are. The end question is: what did the testator (i.e. will maker) intend? You can certainly include ambiguous phrases such as "as reasonably or practically possible" to allow the executors greater discretion. You can even just say "I give my executors discretion to..." This is often the case, in standard wills, for dealing with statutory trusts (where the executors will manage your general estate, investing and selling, in order to cover debts, liabilities and expenses). If you really want to be specific and detailed, you can write "only in the event that X happens, this provision applies" but this is not necessary. Often a phrase "manage the trust to the best interests of all beneficiaries" or something similar will suffice. However, the more discretion you give executors, the more ambiguous terms can get and the more likely executors or beneficiaries (remember beneficiaries can contest the actions of executors if they believe the executors are mismanaging or acting outside of their scope) will seek direction from the court. And the whole point of a will is to avoid the court.

2. I don't believe what you are requesting is too out of the ordinary. Whilst it is not advised to have more than 4 executives, if the law permits, your lawyer, if she or he is experienced in wills and probate, should be able to draft the will according to your wishes. There is really not much law to research, except for knowing what Canada allows (e.g. age of executor, maximum number of executors, minimum age a beneficiary can receive gifts personally, trusts and trustees if minors involved, foreign property, marriage and divorce effect on will etc.), which your lawyer should know already. It's more a matter of legal drafting.