There are many elements involved in the drafting of a will. One of the most important ones is appointing someone to manage the trust or estate left after a testator’s death. There is a high risk of misconduct or mismanagement of a deceased’s estate by the one appointed to manage the estate. The law, therefore, imposes one of the highest standards of care for these people. This is known as a fiduciary duty.
In estate litigation cases in Vancouver, however, breach of fiduciary duty remains one of the most common charges. This is because the fiduciaries might make honest mistakes or sometimes act fraudulently in the management of an estate. The following are among the most common forms of fiduciary misconduct.
This arises when a fiduciary takes an action from which he stands to benefit. Though he should not put personal interests before the estate’s management, greed still influences some fiduciaries. Self-dealing typically involves the investing of an estate’s assets in the fiduciary’s business or using some of the assets. In extreme cases, self-dealing becomes embezzlement of the estate’s assets.
Conflict of Interest
A fiduciary should protect only the beneficiaries’ interests in the management of an estate. Should anyone else other than the estate’s heirs benefit from any dealings with the estate, this is a breach of fiduciary duty. A conflict of interest is also present if a fiduciary accepts bribes and other considerations to sway their conduct even if it is in favor of one of the estate’s beneficiaries.
The duty of a fiduciary is to all heirs of an estate, and he should hence not favor anyone. In some cases, however, a fiduciary enjoys a close relationship with one of the estate’s beneficiaries and might act to benefit them. It is not always possible for all recipients to receive an equal estate share. If one of the beneficiaries, however, receives an outrageously higher profit from the estate, this might indicate beneficiary bias.
The law allows a fiduciary to act in discretion for the good of an estate. An estate’s beneficiaries, however, have a right to know all details pertaining to the condition of an estate and a fiduciary’s actions. Doing things in secret and withholding vital information from beneficiaries constitutes fiduciary misconduct.
In some cases, a fiduciary does not manage the property properly or simply makes no effort to manage it. In case the estate’s management is overwhelming for the fiduciary, he is allowed to get a professional to do so at the estate’s expense. Should he fail to manage the estate or get a professional to do it, this constitutes fiduciary misconduct in the form of negligent misconduct.
With a good estate litigation attorney on your side, you stand to get two forms of legal relief. The fiduciary who has engaged in any types of the above misconduct will be replaced. You and other estate beneficiaries will then be restored to the positions you held before the fiduciary’s misconduct. The fiduciary will also be held liable for the losses caused to the estate due to the misconduct.