Delegating the Power to Appoint Executors – Update

Recently I posted a blog on whether a testator can delegate the power to appoint executors. My point was that they do have that right, but believed that it is not recognized by statute.[1]

Shel Laven of Laven and Company LLP of Calgary very kindly drew my attention to section 13(1) of the Alberta Estate Administration Act.[2] It provides in part:

13(1) On application for a grant, unless the Court orders otherwise, the priority to be given to an applicant for a grant is,

(a) if a will exists, as follows, in descending order of priority:

(i) to a personal representative named in the will, unless that person is incapable of acting or unwilling to act;

(ii) to a personal representative appointed by the person expressly authorized in the will to appoint a personal representative;

(iii) to a residuary beneficiary named in the will;[3]

. . .

The section does not confer the right. The right has existed for hundreds of years and was recognized by the law of probate that was originally administered by the Ecclesiastical Courts, as I stated in my earlier blog. However, s. 13(1)(a)(ii) does expressly recognize the testator’s right to appoint a personal representative and that is useful.

This statutory recognition of the right seems to me to be a very helpful provision in that it neatly answers the question that was posed to me earlier. Perhaps other provinces may wish to follow it.

—

[1] http://welpartners.com/blog/2018/08/delegating-the-power-to-appoint-executors/, posted 7 August 2018.

[2] S.A. 2014, c. E-12.5.

[3] Emphasis supplied.

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Albert Oosterhoff

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