BANKRUPTCY MATTERS IN ESTATE PLANNING

By: Grant M. Driedger

When making a Will or Power of Attorney one has to pay careful attention to ensure that the executor or attorney to be appointed can get the job done.  Skills, reliability and trustworthiness are primary criteria in every case. In some instances, consideration should be given if a potential candidate someone is, or may be at risk of becoming, bankrupt.

Appointment of Bankrupt as Executor:

Section 9 of Manitoba’s The Trustee Act states that a court may remove a person who is bankrupt. Under Canada’s the Bankruptcy and Insolvency Act a person who becomes bankrupt gives up full control over all of their property to the trustee in bankruptcy.  Where a bankrupt person is both the executor and a beneficiary of the estate a trustee in bankruptcy may seek to have them removed as executor, because of fears that they will not do a proper job of administering the estate.

The primary consideration when considering removal of an appointed executor is what is best for the beneficiaries of the estate. In a British Columbia court case (titled “Gechman”) this was done, in part because of fears that the bankrupt executor was not dealing with estate matters honestly and in good faith.

An undischarged bankrupt can be an executor of a will, but it creates risks and may complicate the process. Unless there are simply no other options it would always be better to choose an executor who is not at risk of being embroiled in a bankruptcy proceeding.

Bankrupt Beneficiaries

Testators should also consider that the law is clear that a person who has not been discharged from a bankruptcy gives up all of their property rights to the trustee in bankruptcy.  That includes the right to inherit property.  If a beneficiary named in a will is bankrupt that person’s share of the estate will vest in the bankruptcy trustee, to be distributed among the creditors.

Anyone who has a beneficiary named in their will who is facing bankruptcy should seriously consider changing their will.

Bankruptcy and Power of Attorney

In contrast to an executor of a will, Manitoba’s The Powers of Attorney Act flat out prohibits a person who is an undischarged bankrupt from acting as an attorney. Once they have been discharged from their bankruptcy they can then be appointed – having a bankruptcy in your past does not prevent you from becoming a power of attorney. But being an undischarged bankrupt does.

The Powers of Attorney Act expressly says that a power of attorney terminates if the “donor”, the person who made the power of attorney, becomes bankrupt, unless the enduring power of attorney says otherwise.  Not all powers of attorney are drafted to state that it will not terminate if the donor becomes bankrupt.

For all estate planning matters a bankruptcy can have consequences, and one should carefully consider the impact if that situation comes up.