In D’Angelo Estate, Re, the Court held that it had jurisdiction to appoint a monitor to supervise the actions of the co-executors and ensure that the Estate was properly administered. Justice Quinn relied on the court’s discretion to attach conditions to the grant of probate, as are necessary, to achieve the wishes of the testator. In the specific circumstances of this case, it was determined that the appointment of a Monitor would respect the testator’s choice of estate trustees.
This blog is about the duty of a trustee to supervise and not to delegate.
Can one executor be held liable for the actions of a co-executor? This is the question put to the court in Cahill v. Cahill.
Under Ontario law, all fiduciaries, including estate trustees, have a right to compensation for their time and efforts. This right is derived from the common law, statute, and the instrument creating or governing the relationship, such as a will or continuing power of attorney (as the case may be). However, the question of when a fiduciary is entitled to compensation depends on several factors. In examining this question, this blog will examine the statutory framework for compensation of attorneys and trustees, the common law rule against “pre-taking” compensation and its exceptions, and the consequences that may arise from breach of the rule.
Anecdotally, it appears that a rising number of court cases involve beneficiaries or co-trustees trying to remove a “rogue” executor.
It is reasonably easy to imagine many of the possible reasons for which a trustee or executor may be removed from their position by the Court. Perhaps he appropriated trust property for his own benefit, delayed in taking the steps necessary to administer the trust or estate, failed to account for trust property, or was otherwise clearly incompetent in the role.
The friction between Peter and Michael was long standing and intense. While the reported case does not specifically say so it appears that the arguments over their mother’s investments was just another platform of expression for their mutual animus. While Peter may have been the executor of his grandfather’s estate Michael was his mother’s litigation guardian.
Will a court remove an executor where there is disagreement, friction, or hostility between the trustees and the beneficiaries? Is friction in of itself enough to warrant removal? One of the cases that highlights the Courts’ efforts to grapple with these questions is Rose v. Rose.
If one reviews the secondary authorities one of the grounds listed warranting the removal of an executor is “substantial breach of trust”.
In the Finlayson Estate case the deceased owned certain shares in joint tenancy with her niece. The niece sought an order removing deceased’s husband as executor. She claimed that the 99 year old husband was not competent to administer the estate’ because of his age and infirmities at time of hearing.