Reasonable Fidelity

August 22, 2012 Hull & Hull LLP Estate & Trust, Trustees Tags: , , 0 Comments

In the recent case of Figley v. Figley (77 E.T.R. 3rd 1), the Saskatchewan Court of Appeal considered the removal of an executor in circumstances where he failed to comply with Orders to provide an accounting in respect of his actions under his Father’s power of attorney from the date of his appointment until the Father’s death. As the Court noted: "This is a troubling failure on [the Executor’s] part because the accounting concerns the very assets which comprise the estate he is charged with administering."

While the Court considered various authorities that spoke to the principle that a Court should "not act too readily to remove an executor", evidence was also tendered that demonstrated what the Court found to be "an active intention on [the Executor’s] part to “punish” his siblings.  The Court observed: "It is difficult to understand how he will be able to fairly and even-handedly administer the estate when he starts from this highly partisan point of approach."

The Court concluded that the appellants demonstrated, “a want of proper capacity to execute the duties, or a want of reasonable fidelity” on the part of the Executor and he was accordingly removed and replaced by the Public Trustee. 

While removal cases are always dependent on the facts, the overriding objective of the Court remains to see that the trust property is not endangered and the beneficiaries are protected.

 

David Morgan Smith – Click here for more information on David Smith

 

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