What happens if an executor breaches their duty in Ontario?

When an executor fails to perform their duties properly, beneficiaries have several remedies available under Ontario law. The most common court remedy is a surcharge — an order requiring the executor to personally compensate the estate for losses caused by the breach. For example, if the executor sold an asset at a significant undervalue or failed to invest idle cash prudently, the court can order them to make up the difference from their own funds.

The court also has the power to remove an executor who is not performing their duties, who has a disqualifying conflict of interest, or who has acted dishonestly. An application to remove can be brought by any beneficiary or co-executor. Removal is a serious remedy and courts are generally reluctant to grant it unless there is clear evidence of misconduct or inability to act.

In egregious cases — outright theft from the estate, for example — the matter can also become a criminal one. Executors can face fraud or theft charges for misappropriating estate funds.