Passing of Accounts and Court Costs

Passing of Accounts and Court Costs

Re Rodgers Estate 2017 BCSC 2001 discussed who should bear the costs of a passing of accounts hearing where it was asserted that no valid complaints were raised re the accounting by the party challenging them. The court ultimately held that the estate should bear… Read more

Executor Remuneration and Passing of Accounts

Executor Remuneration and Passing of Accounts

Re Beerenbrouk 2017 BCSC 1785 is a good summary of the law relating to executor remuneration and the passing of executor accounts. A farm property worth $2 million was administered for 8 years and was complex and the beneficiary difficult. The court awarded Capital Fee… Read more

6 Factors of a Fiduciary Relationship

6 Factors of a Fiduciary Relationship

Six factors must exist to create an ad hoc fiduciary duty as per the Supreme Court of Canada in Elder Advocates of Alberta Society v. Alberta, [2011] 2 S.C.R. 261, at paras. 27 and 36. 6 Factors for Fiduciary Relationships: (1) the fiduciary has scope for… Read more

Executor Must Treat All Beneficiaries In Good Faith

Executor Must Treat All Beneficiaries In Good Faith

An executor is in a fiduciary relationship and must treat all beneficiaries fairly and in good faith. Brighter v. Brighter Estate (1998), 1998 CarswellOnt 3113 (Ont. Gen.Div.): The executor has no right to hold any portion of the distributable assets hostage in order to extort… Read more

Executors/Trustees Must Care For Estate Assets

Executors/Trustees Must Care For Estate Assets

The law is clear that a personal representative (executors, trustees, and administrators)  has a duty to care for the assets of the estate: Stanger v. Royal Trust Co., [1947] 1 W.W.R. 538, [1947] 2 D.L.R. 534 (Sask. C.A.). Personal representatives undertake their duties in furtherance… Read more

All About Executors and Administrators

All About Executors and Administrators

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 the… Read more

Trustees for Infants Versus Guardians

Trustees For Infants versus Guardians

Leniuk Estate 2016 BCSC 159 held that a guardian for an infant is not permitted to be appointed the trustee to receive and hold in trust on the infant’s behalf all of the property to which the child is entitled to receive in place of… Read more

Executor Personally Liable For Court Costs

Executor Personally Liable For Court Costs

Craven v Osdacz 2017 ONSC 4396 held an executor of an estate personally liable for costs totalling about $150,000 for reckless and unreasonable behavior that amounted to reprehensible for opposing a plaintiff’s court action for no valid reason other than to frustrate and delay the… Read more

Trustee Cannot Be in Conflict With Duty

Trustee Cannot Be in Conflict With Duty

Equity will not allow a person who is in a position of trust to carry out a transaction where there is a conflict between his or her duty and his or her interest. It is a rule of universal application that no trustee shall be… Read more

Removal of an Executor Summarized

Removal of an Executor Summarized

I am frequently asked about the removal of an Executor that beneficiaries complain about and the following briefly summarizes when and if the court will act to remove and replace an executor. Lord Blackburn stated in Letterstedt v. Broers (1884), [1881-85] All E.R. Rep. 882… Read more

Executors: Specific Bequests and Fees

Executors: Specific Bequests and Fees

Janke, Re 1985 CarswellBC 2298 dealt with the presumption that when an executor is left a specific bequest it is in lieu of fees. This presumption applies only where the bequest is made to the executor in his capacity as executor and yields to very… Read more

Damages in Equity for Breach of Trust

Damages For Breach of Trust

Huff v Price 1990 (BCCA) 51 BCLR 282 held that the amount of damages in equity  in an action for breach of trust will be equal to the highest price at which the property of which that person was deprived could have been sold in… Read more

Executor Found Liable For Lost Rents

Executor Liable For Lost Rents

Executors sometimes let friends or relatives live in estate property and not collect fair rent. The executor can be personally liable for lost rent. Where an executor permits tenants to live rent-free in estate property and the court is satisfied that the property was capable… 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

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… Read more