It is a term of a Will relieving a Personal Representative of liability to a beneficiary for breach of fiduciary duty and is unenforceable to the extent that the term:

(a)Relieves the Personal Representative of liability for breach of fiduciary duty committed in bad faith or with reckless indifference to the purposes of the Will or the interests of interested persons; or

(b)Was inserted into the Will as the result of an abuse by the Personal Representative of a fiduciary or confidential relationship with the testator.

An exculpatory term drafted or caused to be drafted by the Personal Representative is invalid as an abuse of a fiduciary or confidential relationship unless:

(a)The Personal Representative proves that the exculpatory term is fair under the circumstances.

(b)The term’s existence and contents were adequately communicated directly to the testator or to the independent attorney of the testator. This paragraph applies only to Wills created on or after July 1, 2007.

Share this page!