In the ordinary course both the Estate Trustee and the Attorney for Property are entitled to be compensated for their work. What happens if they don’t follow the common law or statutory obligations that oblige an Estate Trustee or an Attorney for Property to keep proper accounts? What happens if they wrongfully take money or breach other obligations on them? Do they still get compensated or do they just get less money? Have the courts provided a clear red line that disentitles a trustee from receiving compensation?
A parent dies and the adult children become equal beneficiaries of the residue of the parent’s Estate.The Estate is primarily made up of income producing real estate holdings that remain profitable. Some of the siblings want to continue to operate the properties, while other siblings want the properties to be sold and converted to money to be distributed to the beneficiaries. Does a beneficiary have the right to force an executor to sell real property that forms part of the Estate?
Section 28 of the Estates Act provides the court with jurisdiction to appoint an ETDL in the context of a Will Challenge or removal of an executor. Arguably, based on the cases reviewed herein, for those matters outside the parameters of s. 28 of the Estates Act the Courts may rely on subrule 75.06 (3)(f). The tests for exercising that discretion are set out in in Kalman v. Pick and McColl v. McColl. When the conduct of the estate trustee is endangering the administration of the Estate the court will exercise its discretion to appoint an ETDL to ensure the transparent and orderly administration of the estate.
On January 5, 2017 Ontario’s Court of Appeal came out with a decision which is of great interest to those dealing with limitation periods, the responsibility of trustees to creditors, and the defence of fraudulent concealment.
As the person managing the administration of the estate, executors are often the most readily available target for disgruntled or disinherited beneficiaries. If the risk is not effectively managed, serving as an executor can entangle you in costly litigation.
If you are named as an executor in a will, it is important to consider the implications of acting as an executor before you take any steps to administer an estate. Also, keep in mind that the role of executor becomes complicated when parties dispute which is the valid last will and testament. Such was the case in Dueck.
Upon someone’s demise a personal representative is appointed. That appointment may come about through a testamentary document or by court order if there is an intestacy. The personal representative has two roles. He or she is responsible for collecting all the assets and paying the liabilities of the deceased. Thereafter, he/she must distribute the estate in accordance with the terms of the will, or if applicable, the laws of intestacy, or, if elected by the surviving spouse, under the entitlement provisions found in section 5 of the Family Law Act.
Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly. The statutory authority to appoint the ETDL is found in Section 28 of the Estates Act, which provides that an ETDL has all the rights and powers of a general administrator, other than the right of distributing the residue of the property. Generally, an ETDL is appointed when the court feels a neutral third party should be administering an estate to preserve estate assets.