There are two ways a trustee can have their administration approved and be discharged. First, they may apply for a passing of accounts pursuant to section 23 of the Trustee Act. Alternatively, they “can avoid the cost and delay of a passing, and instead ask the beneficiaries to approve their administration and provide for their informal discharge directly” by way of a release.

It is said that there are two certainties in life: death and taxes. For those involved in litigation, there is a third: legal fees. Who should bear the often-exorbitant cost of these fees at the conclusion of litigation? Although legal costs have traditionally been paid out of the Estate, modern Ontario courts follow the “loser pays” rule in estates matters. A recent ruling from the Court of Appeal for Ontario[1. Welton Estate v. Haugrud, 2017 ONCA 831] demonstrates that the court has flexibility even when operating within this rule. Specifically, the court can apportion costs between the litigants in a way that respects the importance of giving effect to valid wills while also discouraging parties from taking unreasonable positions.