Estate matters are the source of many conflicts. Often the dispute is out of all proportion to the value of the property at hand because the real dispute is related to matters of emotion and loss. In these circumstances it is absolutely necessary that the fiduciary be free of both the appearance and reality of conflict.
The case of the Estate of Joan Maki is a decision of the BC Supreme Court where two twin sisters were contesting their right to be the executor of the estate of their mother. One of the twins (Karen)had been named as tenant in common with her mother of the condominium that her mother had purchased shortly before her death. The other twin (Kristy) sought an order having Karen removed as executor in order because the estate should inquire into and possibly contest the one half interest that Karen had in the condominium.
The court concluded that the actual conflict of interest between Karen's role as Executor and potential plaintiff and her role as potential defendant mean that she had to be removed as Executor because she could not conscientiously attack a gift to herself while at the same time maintaining, in her personal capacity, that the gifts were proper. The positive duty as executor to gather in and take possession of the property of the estate was plainly in conflict with the position of the defendant.
