In his novel Mother Night, Kurt Vonnegut made the now-famous warning: “We are what we pretend to be, and so we must be careful about what we pretend to be.” This caution is made to those who willingly step into the role of another, flagging the potential consequences that may follow such a decision, even where it is made with the best of intentions.
As our regular readers will notice, this blog frequently comments on the roles and responsibilities that are taken on by individuals connected to a person experiencing capacity issues, or to the estate of a deceased person. The most common of these is that of Estate Trustee, the person named in a Will to administer an Estate, and to carry out the deceased person’s wishes when they are gone. It is a serious and regularly demanding role, one which is too often assigned by testators without adequately considering the weight of this responsibility. Consequently, the responsibilities of trusteeship are occasionally carried out by a person who is not the Estate Trustee. This person, who acts without being named in a Will, is a trustee de son tort (or literally “trustee by his own wrong”). My colleague Mark Lahn has previously blogged about a trustee de son tort scenario involving an individual who informally acted as an attorney for property.
Though the terms “de facto trustee” and “trustee de son tort” are often used interchangeably, it is worth noting that strictly speaking, a de facto trustee is one who acts without appointment, but does so in anticipation of being validly appointed, whether by a pending Certificate of Appointment, or by an order of the Court. A trustee de son tort, on the other hand, acts fully in the absence of such authority. This distinction is helpfully elucidated by the British Columbia Court of Appeal in the 2021 decision of Green Light Solutions Corp. v. Baker.
Is a Trustee De Son Tort Responsible for Their Actions?
Particularly where the named Estate Trustee is absent or slow in their administration of an Estate, it is not uncommon for another individual to begin to act in a manner that fulfils the duties which should be carried out by the Estate Trustee. These individuals, who often act out of a genuine desire to help the Estate Trustee or the estate’s beneficiaries, may not realize that their assistance may attract real liability, as “just helping” can result in being identified by a court as a trustee de son tort.
In the 1993 decision of Air Canada v. M & L Travel Ltd., the Supreme Court held that trustees de son tort can be understood as individuals who “although not appointed trustees, ‘take on themselves to act as such and to possess and administer trust property.” These individuals, by way of their decision to act as though they possess such authority, expose themselves to potential liability, if their actions cause loss. The Court further clarified that “a trustee de son tort will not be personally liable simply for the assumption of the duties of a trustee, but only if he or she commits a breach of trust while acting as a trustee.”
While this narrowing of potential liability may be of some reassurance for those who would (knowingly or otherwise) act as a trustee de son tort, it is nonetheless advisable that any person who seeks to administer a trust or estate should seek to be formally appointed, and ideally, with the assistance of a lawyer who can advise on the specific issues and hazards that should be navigated.
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