Executor/Trustee Must Decide and Not Delegate

Executor/Trustee Must Decide and Not Delegate

While a trustee or executor may retain an agent to perform a particular duty or give them advice, if the will permits delegation of such duties, the executor, trustee must ultimately make the decision about the course of action.
The leading decision on the matter is McLellan Properties LTD v. Roberge 1947 SCR 561 at 566 – 567:
The general rule that one who accepts the position of trustee undertakes to perform personally those duties requiring the exercise of his discretion is subject to certain exceptions. A trustee by the terms of his appointment may be permitted to delegate some or all of those duties. Again, if in the circumstances it would be regarded as prudent for a person in the ordinary course of business to delegate the performance of those duties, a trustee is permitted to do so: Speight v. Gaunt [(1883), 22 Ch.D. 727 (C.A.)]….

These authorities illustrate the general rule and the exceptions thereto founded upon the necessities of prudent business management…

In Re Hatfield Estate (1986), 5 B.C.L.R. (2d) 297 (C.A.), the Court held that trustees may not delegate a power involving the exercise of personal discretion unless they have the authority to do so (see discussion in 0847395 B.C. Ltd. v. Guilbride Estate 2009 BCSC 847 at paras. 64-69; see also Haughton v. Haughton Estate (1995), 80 O.A.C. 273 (C.A.)).

According to Eileen E. Gillese in The Law of Trusts, 3d ed. (Toronto: Irwin Law, 2014) at 160:

If delegation is permitted, trustees may use agents, but they are still responsible for making all decisions. In other words, ultimate decision making rests with the trustees; all they are entitled to do is have the particular agent perform a particular duty or give advice. Trustees, while permitted to delegate some of their duties, may not delegate all of them since that would amount to an abdication of responsibility.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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