ACCOUNTING DUTIES OF THE EXECUTOR AND TRUSTEE – COMPLAINTS AND OBJECTIONS – PART VI
Much like with the form of accounts, the Ontario Rules of Civil Procedure set out a comprehensive listing of what is required to proceed with complaints against an executor or trustee. In Ontario, Rules 74.18(7) and (12) provide as follows:
Notice of Objection to Accounts – 74.18(7)
Subject to subrule (8), which applies only to The Children’s Lawyer and The Public Guardian and Trustee, a person who is served with the documents under subrule (4) or (5) and who wishes to object to the accounts shall do so by serving on the estate trustee and filing with proof of service a Notice of Objection to Accounts (Form 74.45), at least 20 days before the hearing date of the application.
Hearing – 74.18(12)
No objection shall be raised at the hearing that was not raised in a Notice of Objection to Accounts, unless the court orders otherwise.
Most claims or objections will arise out of a claim by a beneficiary of alleged negligence by the executor or trustee, by reason of the executor or trustee not exercising the proper standard of care pertinent to his or her office.
As to just what standard of care is applicable to the office of executor or trustee, this issue is extremely difficult to determine.
Theoretically, it would seem that the law requires of a trustee no higher degree of skill to be brought to the office of executor or trustee than that of a man or woman of ordinary prudence in the management of his or her own affairs.
This implies that the law does not differentiate between the degree of skill required to be exercised by, for example, a trust company and a heavy equipment operator. We know that, from a practical standpoint, such a view is not usually taken by judges on a passing of accounts and the rule might well be restated that, while the law may not differentiate between the degree of skill required to be exercised by different executors and trustees, the likelihood of being excused of a breach of trust under section 35 of the Trustee Act of Ontario diminishes as the sophistication of the executor or trustee increases.
In a future blog, we will address some of the specific complaints that are typically raised in regard to an executor or trustee’s conduct.
All the best, Suzana and Ian. ——–