If you can’t prove any misconduct, you could be responsible for all related legal costs
Published Aug 04, 2023 • Last updated 17 hours ago • 2 minute read
Courts can punish trustees who breach their duties, but every estate is different and executors/trustees communicate differently with beneficiaries. Photo by Getty Images/iStockphoto By Julie Cazzin with Ed Olkovich
Q: What happens if someone does not follow the terms of a will or trust? What recourse does someone have if they feel they have not been treated appropriately in the distribution of assets? — Teresa F.
Article content FP Answers: Teresa, are you referring to errors following the will or trust? Or to possible criminal activity? Criminal activity may be rare, but it requires immediate action to protect property. You may need to find an experienced estate court lawyer to advise you.
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Access articles from across Canada with one account. Share your thoughts and join the conversation in the comments. Enjoy additional articles per month. Get email updates from your favourite authors. Courts can punish trustees who breach their duties, but every estate is different and executors/trustees communicate differently with beneficiaries.
Executors and trustees hire their own lawyers, who do not act for beneficiaries. You will need to have your own estate lawyer to protect your interests and confirm whether there was any possible misconduct. Your lawyer will advise you of the steps to take and the approximate costs.
Your options may depend on how serious any breach of duty is, but here are three things to consider to remedy the situation.
First, you can receive answers to your questions informally. You may not be happy with the delay in selling a home or with how the contents of a safe deposit box were divided. But these can be simply delayed by pandemic backlogs, income tax issues or will contests. Speaking with your lawyer may quell your suspicions.
Second, you can request a formal passing of accounts. If you don’t get answers, you can ask executors to pass their accounts, which are records that executors keep when they start work. A passing of accounts is a formal court audit process that requires executors to identify every transaction in court format and verify with receipts.
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Article content Passing accounts is a complicated and expensive legal process. Executors usually request compensation or fees for services in court at the passing. The accounts must be approved by beneficiaries or by a judge. If the accounts are disputed, courts can order the production of documents, give directions or require the matter go to mediation.
Can you draw up a will on your death bed? And if so, how? How to split RRIF income with a spouse to get the $2,000 tax credit Is conservative approach hurting investment returns? Finally, you can refer your issues to mediation, an informal, out-of-court process to resolve estate disputes. It’s an alternative to a formal court hearing. If you can’t prove any misconduct, you could be responsible for all related legal costs.
Have your own estate lawyer advise you, but understand that if you make needless objections, or allege misconduct you can’t prove, you can be responsible for the increased legal costs for court filings or mediation.
Ed Olkovich is a Toronto lawyer and law society certified specialist in estate and trusts law.
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