Can an Estate Trustee settle claims on behalf of an estate?

April 12, 2016 Stuart Clark Executors and Trustees Tags: , , , , , 0 Comments

You are the Estate Trustee of an estate currently involved in a dispute with the deceased’s former business partner. In the context of such a dispute, the former business partner puts forward what you believe to be a reasonable settlement proposal which you are inclined to accept. Before accepting such a proposal however you ask yourself whether you, as Estate Trustee, unilaterally have the authority to seKU273L0WTWttle such a dispute on behalf of the estate, or if you are required to involve the beneficiaries of the estate as part of any settlement?

An Estate Trustee’s authority to settle claims on behalf of the estate is established by section 48(2) of the Trustee Act, which provides:

A personal representative, or two or more trustees acting together, or a sole acting trustee, where, by the instrument, if any, creating the trust, a sole trustee is authorized to execute the trusts and powers thereof may, if and as they may think fit, accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed, and may allow any time for payment for any debt, and may compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the testator’s or intestate’s estate or to the trust, and for any of these purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as seem expedient without being responsible for any loss occasioned by any act or thing done in good faith.” [emphasis added]

While an Estate Trustee has the authority to settle any claim on behalf of the estate without the involvement of the beneficiaries, this does not necessarily mean that the Estate Trustee will be insulated from liability for their decision to have done so. The Trustee Act provides that the Estate Trustee shall not be liable for any loss associated with the settlement so long as the settlement was entered into in “good faith”. To this effect, whether or not the Estate Trustee will later be liable to the beneficiaries for any settlement will turn on whether any such settlement was entered into in “good faith”, with such a determination often being made within the context of a later Application to Pass Accounts. If the court concludes that the settlement was entered into in “good faith”, the Estate Trustee will not be liable to the beneficiaries. If the court concludes that it was not entered into in “good faith”, the Estate Trustee may be liable to the beneficiaries for the settlement.

In order to reduce any concern that the beneficiaries may later take issue with any settlement, many Estate Trustees will reach out to the beneficiaries to seek their prior approval. While such a route is often the safest option for the Estate Trustee to take, it is not necessarily mandatory, and the Estate Trustee may unilaterally enter into any settlement on behalf of the estate so long as they are prepared to justify any such settlement to the beneficiaries on a subsequent passing of accounts.

Stuart Clark

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