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Posts Categorized: Passing of Accounts
10 ResultsTo Remove or Not to Remove … That is the Question
Estates tell a million stories and the case of Ford v Mazman, 2019 ONSC 542, is is just one of them. Mary died on April 3, 2017. Mary’s 2004 Will named her two nieces, Laura and Carleen, as sole beneficiaries. Mary appointed her close friend, Seta, as her estate trustee/executor. Laura had travelled to Ontario…read more
Limiting the Limitations Act
Estate trustees must be ready at all times to account for their management and administration of an estate. There is no statutory requirement for an estate trustee to formally pass his or her accounts. However, the court may order an estate trustee to do so. As part of the estate accounting application, beneficiaries can file…read more
But Everything’s Depending on the Way the Wind May Blow [1]
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
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
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?
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!
“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
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
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
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