Passing of Accounts Occur When the Executor Applies To Court to Approve the Estate Accounts- Guardian ordered to repay missing funds.
It presents a very familiar fact pattern to many estate litigants.
The Court followed Zimmerman v. McMichael Estate (2010), 103 O.R. (3d) 25 (Ont. S.C.J.), in which Strathy J. awarded no compensation for a guardian of property, where significant amounts of money had disappeared from an estate without adequate explanation.
The applicant was the guardian of property for his mother . In Ontario, this is the same as a court appointed committee of a patient in British Columbia under the Patients Property Act of RSBC.
The guardian of her property passed accounts in 2001 and not again until 2010 shortly after mother’s death.
The total revenue from 2001 to 2010 was $195,776.41 and total disbursements totaled $207,036.44 .
His mother’s investment account had value of $152,055.71 in 2001 and $46,562.91 in 2010 .
The guardian made cash withdrawals from investment account of $122,534.40 between 2001 and 2010, without explanation.
The guardian brought an application to passing of accounts and for his compensation for being guardian.
The guardian’s brother objected and the application was dismissed.
Instead, the guardian was ordered to pay $132,628.33 and repay $12,699 to mother’s estate .
The guardian was not entitled to compensation as the guardian’s conduct was shocking, as he withdrew thousands of dollars from his mother’s estate for his own benefit.
The estate was not complicated.
The guardian adversely affected the estate leaving the investment account reduced to fraction of its original size with no explanation.
The Court instead ordered the guardian to personally pay the brother’s costs of the court application.