What does it mean for an executor to have a fiduciary duty in Ontario?

A fiduciary is someone who is required by law to act in the best interests of another person rather than their own. In Ontario, an executor (estate trustee) is a fiduciary with respect to the beneficiaries of the estate. This is one of the most important legal concepts governing estate administration.

The fiduciary duty means the executor must put the beneficiaries' collective interests ahead of their own personal interests at every step. They cannot use estate assets for personal gain, cannot self-deal (for example, buying estate property at a discount), and must not favour one beneficiary over another unless the will expressly permits it. They must act impartially, honestly, and with the care a reasonably skilled person would exercise.

A breach of fiduciary duty can expose the executor to a surcharge — a court order requiring the executor to personally compensate the estate or beneficiaries for losses caused by the breach. In serious cases, the court can also remove the executor and order them to pay legal costs.