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

Fiduciary Relationships

  Most of us likely do not give a moment’s notice to the concept of the fiduciary relationships. This concept, however, is an extremely important principle of the common law. It provides a very flexible legal remedy often used used to protect vulnerable individuals who… Read more

Removal of an Executor – Trustee

  Dunsdon v Dunsdon 2012 BCSC 1274 has an excellent and brief summary of the law relating to the removal of an executor-trustee, pre WESA as of April 1, 2014 : [202] Put broadly, a trustee may be removed where his or her acts or… Read more

Criteria For Removal of a Trustee

Criteria For Removal of a Trustee: Grafton v Canada Trust 2012 ONSC 6955 is an interesting case on when a court will or will not remove a trustee. In this case a 92 year old life tenant in a house of disrepair wanted to borrow… Read more

Prior Unregistered Trust Takes Priority Over Creditor

Unregistered Trust Agreement and Creditors   Colantonio v Don Park and Mercedes Benz 2013 ONSC involves a dispute between an estate and a creditor with respect to an unregistered trust agreement, and the priority between the two competing claims. A mother and father purchased a… Read more

Duties of a Trustee

Duties of a Trustee Zimmerman v. McMichael Estate 2010 ONSC 2947, 57 E.T.R. (3d) 101,103 O.R. (3d) 25 is an excellent review of the strict duties that govern the conduct of a trustee. Deceased were husband and wife and founders of extensive Canadian art collection… Read more

The Authority of the Executor

Romans Estate v. Tassone 2009 BCSC 194 is a very good case authority of the executor that reviews the legal authority of an executor appointed under a valid will. The matter related to the estate of an elderly man who was stricken late in life… Read more

How Much Should An Executor Be Paid

How Much Should An Executor Be Paid? Hooke Estate v. Johnson 86 E.T.R. (3d) 92   The deceased appointed her solicitor as trustee of her estate. The Trustee handled her estate in accordance with deceased’s wishes and claimed executor’s compensation in amount of $21,900.93 for… Read more

Court Declines to Remove Trustee

Applications to remove executors/trustees are common, and are not always successful with the court declining the application. Miles v Vince 2013 BCSC 888 Removal of a Trustee The petitioners husband settled the trust in 2007 and named the petitioner and her three children as the… Read more

Court Declines to Remove Trustee – Orders Construction of Trust

Court Declines to Remove Trustee Winkler v Winkler 2012 BCSC 1949 involves an application by the surviving widow of the deceased, in her capacity as comity of the person and estate of the deceased, sought an order that her stepson be removed as a trustee… Read more

Breach of Fiduciary Duty

Breach of Fiduciary Duty In Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, [2011] 2 S.C.R. 261(S.C.C.), the Supreme Court of Canada concisely described the nature of a fiduciary relationship. At para. 22, the Court observed that the doctrine relating to fiduciary duty… Read more

Punitive Damages Awarded For Trustee’s Egregious Conduct

A trustee’s Egregious Conduct lead to an award of punitive damages of $100,000 against the trustee personally. Walling v Walling 2012 ONSC 6580 involves a decision where the Ontario Supreme Court awarded $100,000 punitive damages against the trustee of an estate for extremely egregious conduct… Read more

Breach of Fiduciary Duty In Widow’s Reliance On Family

A breach of fiduciary duty was found when following her husband’s death, a widow relied upon  family members  to enter into improvident land transfers based on assertions that the widow relied upon. It is a fact that families financially abuse each other and often in the… Read more

Executor Must Renounce In Order to Contest the Estate

Executor Must Renounce to contest the will It is fairly common in estate disputes that the executor of the will is also dissatisfied with the same will that the executor is by office bound to carry out and enforce. Since in estate claims it is… Read more

The Reverse Onus of Proof When Suing a Fiduciary

Suing a Fiduciary and Reverse Onus Is Important The duty of loyalty of a fiduciary is protected through onuses. Fiduciaries are held to an irregularly high standard of behavior in civil law due to the nature of their duties. It is the peculiarly unequal position… Read more