Update on Compensation and Duties of Estate Trustees, Guardians and Attorneys

Three times a year I update this published text. With permissions, I have posted this Publisher’s Note.  

What’s New in the May 2021 Release

• Chapter 16: Will Challenges

In Magnotta v. Magnotta, 2020 CarswellOnt 1096, 2020 ONSC 316 (Ont. S.C.J.), the court stated estate creditors that have no financial interest in the estate should not use notices of objection to recover debts before judgment.

The current practice direction for the Toronto estate list is in Appendix 16-1.   

• Chapter 18: Common Law Equitable Remedies — Resulting and Constructive Trusts, Unjust Enrichment and More

In Calmusky v. Calmusky 2020 CarswellOnt 6539, 2020 ONSC 1506 (Ont. S.C.J.), the resulting trust analysis of Pecore was applied to beneficiary designations. This decision shifts the burden to designated beneficiaries to prove a gift was intended and not a resulting trust.

• Chapter 19: Applications to Court — Protection for Estate Trustees

The new notice of application required under the Rules of Civil Procedure, as amended January 1, 2021, is at Appendix 19-1.

Executors can seek advice, opinion, and direction from court. Where beneficiaries cannot be found, estate trustees can obtain protection with Benjamin orders. Estate trustees can then distribute estate assets without liability for breach of trust.

• Chapter 20: Discharge and Removal of Personal Representatives and Estate Trustees

The appointment of estate trustees without wills is governed by s. 29 of the Estates Act. No priority is given to anyone on the list of potential statutory estate trustees without a will.

In Magnotta v. Magnotta, 2020 CarswellOnt 1096, 2020 ONSC 316 (Ont. S.C.J.), Justice Dietrich reviews the discretionary factors courts consider to issue estate certificates for intestate estates.

In Dewaele v. Roobroeck, 2020 CarswellOnt 17952, 2020 ONSC 7534 (Ont. S.C.J.), Justice L.C. Sheard reviews caselaw before removing two estate trustees who failed to administer the estate.

• Chapter 23: Capacity — Powers of Attorney and Substitute Decision-Making

In Lockhart v. Lockhart, 2020 CarswellOnt 12189, 2020 ONSC 4667 (Ont. S.C.J.), Justice Dietrich reviews capacity tests for powers of attorney for personal care and property. Costs in capacity cases under the Substitute Decisions Act, 1992 are also considered.

• Chapter 25: Advising Attorneys and Guardians on Duties

In Kumra v. Kumra, 2020 CarswellOnt 4303, 2020 ONSC 1425 (Ont. S.C.J.), Justice Dietrich advises a guardian that it was not bound by an agreement not included in its management plan under the Substitute Decisions Act, 1992.

Reproduced by permission of Thomson Reuters Canada Limited.