Executor Breach of Fiduciary Duty in Ontario: Your Options

Being a beneficiary of an estate can mean waiting months with little information. If you suspect the executor is spending estate money on themselves, delaying without reason, or keeping you in the dark, you are probably wondering what you can actually do.

This article explains, in general terms, the main court routes open to beneficiaries in Ontario. What is available to you depends on the facts, so treat this as a map, not a plan.

What an executor owes the estate

An executor (called an estate trustee in Ontario) manages the estate for the benefit of the people entitled to it. A complaint of breach of duty is, in plain words, a claim that the person in charge did not manage the estate properly, for example by using estate money for themselves, mixing it with personal money, or ignoring the interests of beneficiaries. Exactly what a trustee owes you in a particular estate depends on the facts, so it is worth confirming with a lawyer.

A trustee is entitled to be paid, but the law describes compensation as a fair and reasonable allowance for their care, effort and time, as allowed by a judge of the Superior Court of Justice. Taking more than that, without approval, is a common source of disputes.

Step one: get information and force accounts

Start by asking the trustee in writing for information about the assets, debts and what has been paid out. No Ontario law requires a trustee to pass accounts at fixed intervals, so a trustee may decline unless a court compels it.

A court will not require an executor or administrator to account unless a person interested in the estate or a creditor asks for it, which means a beneficiary can apply to compel accounts. On a passing of accounts, the judge may inquire into any complaint by a person interested, and may order the trustee to pay damages or other sums to the estate.

If the trustee applies to pass accounts and you disagree, filing a notice of objection to the accounts does not start a proceeding, so the general two-year limitation period does not apply to that objection.

Removal, replacement and other court orders

• Removal: the Superior Court of Justice may remove a personal representative and appoint another suitable person.
• New trustee: the court may appoint a new trustee in addition to or in place of existing trustees.
• Damages or repayment: the judge may order a trustee to pay money to the estate after a passing of accounts.
• Protecting land: if the dispute is about an interest in land, a certificate of pending litigation may be registered once the court issues it.

Courts treat removing a trustee whom the deceased specifically chose as a serious matter. Whether a particular problem, such as delay, conflict or poor communication, is enough to justify removal depends on the facts of your situation, so it is worth confirming with a lawyer before you decide how to proceed.

Defences and limits to know about

A trustee who acted honestly and reasonably, and ought fairly to be excused, may be relieved wholly or partly from personal liability for a breach of trust. That relief does not cover a loss arising from investing trust property.

A court may also discharge a certificate of pending litigation in several situations, for example if the claim is really for money and not the land, or the claimant does not pursue the case with reasonable diligence.

Which rule fits your claim is not always obvious, so confirm it before assuming you have time.

What to do next

• Write down what you have noticed and when you first noticed it.
• Request information and accounts from the trustee in writing and keep copies.
• Collect statements, emails and any records of estate payments.
• If you have a financial interest, consider filing Form 74P so the court notifies you when someone starts a proceeding involving the estate.
• Speak with an estates lawyer about limitation periods and which court application suits your situation.

Frequently asked questions