Fiduciary Duties: The Rules on Profit

The Profiteering Fiduciary

Fiduciaries must account for their handling of trust properties to the trust beneficiaries, and are not allowed to profit from being a fiduciary other than being paid reasonable fees for services rendered. Equity compels a fiduciary to hold and manage trust property on the terms… Read more

Fiduciary Duties of Corporate Directors

Fiduciary Duties of Corporate Directors

Ascent One Properties Ltd v Liao 2017 BCSC 1017 dealt with an aborted real estate development project that alleged inter alia a breach of fiduciary duties by a corporate director and officer. The case outlines the law relating to the fiduciary duties owed by a… Read more

Trustee Act: Trustees Breach of Trust Excused

Trustees Breach of Trust Excused

Section 96 of the Trustee Act allows the court to excuse a trustee for negligence or breach of trust when handling estate assets if the trustee acted honestly and reasonably. Section 96 states as follows: 96. If it appears to the court that a trustee,… Read more

costs against lawyers

Personal Court Costs Against Lawyers

C.A.S. of the R.M.of W. v C.T.and J.B. 2017 ONSC 318 awarded personal court costs of $100,000 against a lawyer for her role in a custody battle involved in the Children’s Aid Society. The court found that the lawyer’s tactics and strategy had caused an… Read more

Fiduciary Duty

Attorney’s Fiduciary Obligations Increase When Donor Incapable

Turning to the law, as one might expect, the fiduciary obligations of an attorney become elevated once the donor of the power becomes incapable. This is described by the Ontario Court of Appeal as follows (Richardson Estate v. Mew, 2009 ONCA 403): In Banton [Banton… Read more

The Factors To Determine an Executor’s Compensation

In the well-known case of Re Toronto General Trusts and Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.), five central factors should be considered by the audit judge in arriving at the amount of an executor’s compensation. The maximum fee for obtaining probate and distributing… Read more

Party Cannot Take Tax Benefit For One Purpose and Deny It For Another

In Rosenthal v Rosenthal, 1986 CarswellOnt 288 (HCJ), it was held that an individual cannot take a position to obtain a tax benefit and then deny that position to obtain a different benefit. At para 51 of Rosenthal, the court noted that “it is being… Read more

The Prudent Investment Standard For Trustees

The Prudent Investment Standard For Trustees

Miles v Vince 2014 BCCA 290 allowed an appeal and removed a  trustee for failure to abide by the Prudent Investor Standard expected of a trustee. The Trustee had used the funds from an insurance trust for a speculative real estate investment The Prudent Investor… Read more

Executor Ordered to Repay Monies Back to Estate Paid Out Before Expiration of 6 Month Limitation

  Executor Ordered to Repay Monies Back to Estate Paid Out Before Expiration of 6 Month Limitation Stevens v. Wood Estate (Re), 2013 BCSC 2380 Until six months have passed from the issuance of probate of a will, s. 12 of the Wills Variation Act,… Read more

Trustee Removed For Selling Assets Below Market Value and Benefiting

Trustee Removed For Selling Assets Below Market Value and Benefiting VanKoughnett & Others v. Austin, 2006 BCSC 1856 is authority for the proposition that a trustee removed under section 30 of the Trustee Act where there is potential conflict of interest between the personal interests of… Read more

The Executors Obligation To Maintain Estate Assets

Executors obligation cannot just idly stand by and allow estate assets to deteriorate or waste- the executor and trustee has a duty of care to mange and preserve the estate assets. The legal test is as follows: The traditional standard of care of an executor/trustee is… Read more

Fiduciary Relationships- Leading Case

  It is important on occasion to revisit some of the  British Privy Council case authority chestnuts that have developed as pillars of certain areas of the law. One such case would be the Privy Council case of Noriah v Omar 1929 AC 127  relating… Read more

Neighbour Found to Be a Fiduciary re Finacial Advise/Abuse

  Neighbour Found to Be a Fiduciary Janz v. McIntosh [1999] S.J. No. 121 is an excellent example of a court finding a breach of fiduciary duty where the alleged fiduciary was not a professional . In fact he was simply a neighbor. The Plaintiff… Read more

Advising The Personal Representative

1. INTRODUCTION It is perhaps trite to state that the role of the drafting notary or solicitor is simply not to fill in the blanks and record the testator’s instructions, including his or her choice of executor, but instead to actively advise and draw to… Read more

Removing and Replacing Executors and Trustees

Removing and replacing an executor/ trustee is one of the most common enquiries that I receive. The matter is both intriguing and somewhat complex, largely due to historical developments concerning the legal differences between the role of an executor and a trustee. 2. VOLUNTARY REMOVAL… Read more