But Everything’s Depending on the Way the Wind May Blow [1]

by: , April 2, 2018

Can an estate trustee move to strike a beneficiary’s Notice of Objection to Accounts in the face of their Application to Pass Accounts, based on any of the Limitations Act, 2002, and/or laches and acquiescence? This was the discreet, though important, issue considered by the Ontario Superior Court of Justice in Wall Estate, 2018 ONSC…read more

Passing of Accounts: Adjusting An Estate Trustee’s Compensation

by: , January 5, 2015

In a recent passing of accounts case, the court reduced the estate trustee’s compensation for the following reasons: – No compensation should be charged on investment losses listed as capital disbursements; – The costs connected to the sale of real property (real estate commission, property taxes, and legal fees) are not to be included when…read more

Passing of Accounts: A Math Problem Explained

by: , August 14, 2014

In a recent blog post entitled “Things Lawyers Know,” I laughed out loud when I read #13:  “Lawyers are word, not number people.  If their fee went up 10%, few lawyers would know how much extra they received.” Math often comes into play in an estates litigation practice, particularly in the context of a contested passing of…read more

In the Absence of Accounting Records, What are the Options?

by: , May 1, 2014

The Ontario Court of Appeal in Pirani v Esmail was asked to determine the appropriate way to determine the quantum of damages when no accounting records are available. In a 2-1 decision, the majority held that the expert’s reconstruction of accounts was not reliable given the near absence of accounting records. However, the dissenting judge…read more

Salvador Dali, Melting Clocks, Financial Incapacity, and the Removal of an Attorney for Property!

by: , April 3, 2014

“If the drawing of the clock was akin to Salvador Dali’s paintings, it would not bode well.” Colourful words from Justice Whitten who relied on the court’s parens patriae jurisdiction to remove an attorney for property. The drawing of an ordinary clock is often administered to determine “intellectual acuity”.  Salvador Dali’s iconic image of a…read more

Objections to Trustee Accounts Must Be Specific

by: , March 18, 2014

In reasons delivered last week in Michipicoten First Nation v. Michipicoten First Nation Community Trust, Justice Varpio emphasized that objections to trustee accounts must be specific.  If objections are too vague, then the objectors run the risk of having their objections struck.  An added risk of delivering vague objections is that the lack of specificity will result…read more

Limitation Period Precludes Motion to Set Aside Releases

by: , January 24, 2014

In the usual litigation battle, a release operates as a “shield” in the sense that if a beneficiary sues an estate trustee, the estate trustee can use the release as a defence.  In Re: Sheard, the estate trustees were able to use signed releases to preclude them from having to pass their accounts for the period…read more

Court Need Not Always Order a Fiduciary to Account

by: , September 4, 2013

In an earlier blog by fellow blogger Jasmine Sweatman, she commented on the emerging principle of proportionality in our judicial system and how it might impact on a fiduciary’s duty to pass accounts.  She queried: Where does proportionality “fit” with the right of a beneficiary of an estate or trust  to review and make inquiries of the…read more