Signing a Trustee Release

Signing a Trustee Release

Anyone practicing law in wills and estates, or who has inherited monies, will be familiar with being required to sign a Trustee Release before the funds are disbursed to the beneficiaries.

In BC, it is simply the way business is conducted, and it saves a great deal of time and expense by not forcing the executor/trustee to pass accounts firstly before distributing the assets.

Thus I was somewhat surprised to read the following extract from Bronson v Hewitt 2010 BCSC 169:

The Trustee’s entitlement to demand a release does not arise for the first time in this action. The first reported case dates back to 1845. In Chadwick v. Heatley (1845) S.C. 2 Col. 137, 63 E.R. 671, the trustee sought to distribute trust funds to surviving beneficiaries. He offered a general release as a condition to the payment which the plaintiff refused to sign. The court concluded the trustee did not have the right to insist on having the release executed.

[655] In King v. Mullins (1852), 61 E.R. 469, the court held that although it was usual practice to give a release in order to discharge a trustee, a trustee paying in accordance with the letter of the trust has no right to require a release.

[656] In Brighter v. Brighter Estates, [1998] O.J. No. 3144 (Ct. J. (Gen. Div.)), the court was most critical of the executor requiring a release. The court said at para. 9:
… An executor’s duty is to carry out the instructions contained in the will … [T]he executor has no right to hold any portion of the distributable assets hostage in order to extort from a beneficiary an approval or release of the executor’s performance of duties as trustee, or the executor’s compensation or fee. It is quite proper for an executor (or trustee, to use the current expression) to accompany payment with a release which the beneficiary is requested to execute. But it is quite another matter for the trustee to require execution of the release before making payment; that is manifestly improper.

[657] In Rooney Estate v. Stewart Estate, [2007] O.J. No. 3944 (Sup. Ct. J.) the court noted at para. 39: “[t]he manner of sending the release first and the cheque later suggests the “beneficiary was held hostage for the release.”

[658] In spite of the judicial criticism, a review of British Columbia practice manuals and Continuing Legal Education (“CLE”) publications suggests that it is a common practice to seek a release prior to distribution: R.C. DiBella, Wills and Estate Planning Basics – How to Administer an Estate from Collecting the Assets to Paying Accounts, Materials prepared for CLE Seminar, Vancouver, B.C., October 2006; Gabrielle Komorowska, Guide to Wills and Estates, British Columbia ed. (Gibsons: Evin Ross Publications 1996); British Columbia Probate and Estate Administration Practice Manual, vol. 2, 2d ed. (Vancouver: CLE BC, 2007).

[659] The alternative to obtaining a release is for the trustee to pass his accounts. The passing of accounts will release a trustee from future obligations. For a trustee to request a release of future claims is not in itself objectionable. In this case, however, the proffered document seeks not only a release of future claims but also that the beneficiaries indemnify and hold harmless Howard from any claims arising subsequent to September 30, 2002. A request for an indemnity and hold harmless agreement goes well beyond the type of release referenced in the B.C. practice manuals. In addition, the Distribution Letter suggests that the beneficiaries must sign the Release before any cheque will be forthcoming.

[660] While a request for a release and indemnity in that form may be objectionable, it does not in the first instance create any loss or damage. If all of the beneficiaries had been prepared to sign the Release, matters would have been resolved. They, of course, were not.

[661] What happened subsequently is a matter of greater concern. That signing the Release was a condition of being paid became clear when only those who signed the Release were paid. Under the terms of the trust, distributions were to be made equally. That did not happen. Only those who signed the Release got paid.

[662] The submission that the trustee was entitled to pay certain beneficiaries and accumulate for others is, with respect, untenable. It is contrary to the terms of the BNT Trust Agreement. Further, it is clear that the trustee was not in this case exercising a good faith discretion in accumulating for some beneficiaries and paying others. The only reason the plaintiff beneficiaries were not paid was because they were not prepared to sign the Release, a document that the trustee was not entitled to demand.

[663] By paying certain beneficiaries and not others, Howard breached the terms of the BNT. As soon as Howard paid certain beneficiaries, he was legally obliged to pay the others, regardless of whether or not they were prepared to sign the Release. Although he may have been entitled to hold all of the funds pending a passing of accounts, what he could not do, given the terms of this trust, was to pay some beneficiaries and not others.

[664] It is a principle of equity that equity will not suffer a wrong to be done without a remedy: John McGhee, Snell’s Equity, 31st ed. (London: Sweet & Maxwell, 2005).

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