Can a Fiduciary Overcome Poor Record-Keeping?

August 29, 2017 David M Smith Estate & Trust, General Interest, Guardianship, Passing of Accounts, Uncategorized Tags: , 0 Comments

The duties of a fiduciary must be performed diligently, with honesty and integrity and in good faith, for the benefit of the recipient.  Whether a fiduciary can prove that he or she has complied with these duties will depend to a great extent on the ability of the fiduciary to account.  While the duty to account is not debatable, the Court may consider the specific circumstances of the fiduciary when evaluating whether their actions are appropriate.

In Christmas Estate v Tuck [1995] OJ No 3836, the executor disputed numerous cheques for the benefit of the attorney for property and other cash gifts that she was unable to substantiate with receipts or vouchers. The Court held that it would be inappropriate to impose strict accounting requirements where the parties had a “close family relationship”, in this case, mother and daughter.

The Court further declined to draw a negative inference when the attorney was unable to produce records to account for all transactions: the grantee had helped the grantor “in a multitude of ways” and, accordingly, the burden of strict accounting practices was inappropriate.

In Laird v Mulholland [1998] OJ No 855, the Court noted that the overall credibility of an attorney for property is an important factor in determining whether that attorney’s informal accounts are satisfactory. The Court was unable to conclude that the attorney had acted dishonestly with a view to misappropriating the grantor’s assets, notwithstanding that his “record-keeping practices [left] much to be desired.

The Court pointed to the “abundant evidence” that the Attorney had performed “a multitude of services” which were entirely for the benefit of the grantor. The Court held that the fiduciary had acted “honestly and reasonably in all the circumstances” and should therefore be “relieved from personal liability.”

Thanks for reading,

David Morgan Smith

 

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