Objecting to Estate Accounts in Ontario as a Beneficiary

If you are a beneficiary and something in the estate's accounts looks wrong, you do not have to simply accept it. The court process gives you a way to raise concerns, but it works on strict timelines and in a set format.

This article explains how to get information, what to look for in the accounts, and how to file a notice of objection in Ontario.

Getting information before accounts are filed

An executor or administrator does not need to account to a court, apart from an inventory, unless asked by or on behalf of a person interested in the property or a creditor. Any person who appears to have a financial interest may move for an order requiring the estate trustee to pass accounts.

You may also move for an order requiring the trustee to file a statement of the nature and value of the estate's assets at the date of death, and then for further particulars. These steps can help you see whether something is missing before you decide to object.

What to look for in the accounts

Filed accounts must follow a required structure. That structure gives you a checklist to compare against what you know about the deceased and the estate.

• Assets at death: the statement of assets must be cross-referenced to entries showing how each asset was disposed of, so look for assets you expected that do not appear.
• Money received and paid out: the accounts must cover all money received and all money disbursed, and each account must show the balance forward, so check that the balances carry through.
• Compensation: the statement of compensation claimed must be included, and the court allows a fair and reasonable amount.
• Expenses: a trustee may pay an expense from the estate, or pay personally and be reimbursed, if they believe it was properly incurred, but the court can later disallow it if it was not properly incurred in carrying out the trust.
• Investments: investment transactions must be shown, and trustees investing estate property must use the care, skill, diligence and judgment of a prudent investor.
• Liabilities: all liabilities, contingent or otherwise, should be listed.

If the will fixes the trustee's allowance, the court's usual power to set compensation does not apply. Where a lawyer is the trustee and provides necessary professional services, the allowance may be increased to reflect those services.

Compensation taken early

A trustee may take compensation before accounts are passed only with the agreement of all persons with an interest who are sui juris, with court approval, or where the will provides for it. If a trustee did this and the court later approves a lower amount, the court can order the difference repaid to the estate.

If you did not agree to early payments and the will does not allow them, that is a point worth raising with a lawyer.

Filing a notice of objection

Once the trustee applies, the notice of application and draft judgment must be served on every person with an interest, at least 60 days before the hearing if served in Ontario. Where the Public Guardian and Trustee or the Children's Lawyer represents a person, they are served too.

A beneficiary who objects must serve and file a notice of objection to accounts (Form 74.45) at least 35 days before the hearing date. No objection may be raised at the hearing unless it was raised in a notice of objection, unless the court orders otherwise. List every concern, because you may not be able to add one later.

If no objections are filed, or all are withdrawn, the court may grant judgment without a hearing. If objections remain, the judge can inquire into any complaint, including misconduct or neglect causing loss, and may order payment to the estate.

Costs on a passing are assessed under Tariff C, and a party seeking more must serve a request for increased costs with a costs outline at least 15 days before the hearing. Ask about costs risks before you object.

What to do next

• Write down the date you were served and the hearing date, then work out your 35-day objection deadline.
• Compare the accounts against bank records, the will and anything you know about the deceased's assets.
• List each concern clearly and attach what supports it.
• Ask a lawyer to review your notice of objection and the costs risks before you file.

Frequently asked questions