BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART I
While the law surrounding the breach of fiduciary duty has evolved in many ways over the years, it may be that its current application to estate litigation should be revisited.
The conventional situation where an attorney, a personal representative or a trustee is in a fiduciary position and then uses his or her power in a way that would constitute a breach of that position, has been seen as a fundamental breach of fiduciary duty: see M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th) 289 (S.C.C.).
In M.(K) v. M(H), a unique twist to the conventional "breach of fiduciary duty" was considered by the Supreme Court of Canada in the context of the fiduciary duties of a parent.
It appears that there is now clear authority for the proposition that a parent is in a fiduciary relationship with his or her child. Furthermore, where there are abusive actions on the part of the parent against the child, this conduct may cause the Court to hold that a breach of fiduciary duty has occurred and thereby damages may be awarded against the parent. See also Cullity, M.C. "Personal Liability of Trustees and Right of Indemnification", 16 E.T.J. 115.
Ian has published an article on this topic in the Estates and Trusts Reports entitled, "A New Twist on Breach of Fiduciary Duty in Estate Litigation" (Carswell, 1999). As such, we propose to undertake a careful review of this unique yet important aspect of fiduciary duties.
All the best, Suzana and Ian.