9 Legal Principles of Trustee Removal

Trustee Removal

Two Ontario cases summarize the law relating to the removal of a trustee appointed by a will and would likely be followed as the law in British Columbia. In Chambers Estate v. Chambers 2013 ONCA 511, the court found that a testator’s wishes as to who… 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

Removal of Executor/Trustee For Conflict of Interest

Removal of Executor/Trustee For Conflict of Interest

As a BC estate lawyer, I am often asked to remove an executor/trustee. Re Ching 2016 BCSC 1111 is one of several cases where the courts have indicated their reluctance to remove an executor for a perceived conflict of interest. The executor/trustee was however removed… Read more

Removing and Replacing Executors and Trustees

This video is on removing executors and trustees. Personally, I think being an executor is like being a fire hydrant on a street of dogs. You can never, ever get enough appreciation. Unfortunately, it seems to attract a lot of heat. Now there are good… 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 repay

Executor Ordered to Repay Monies

  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

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