Tag: estate assets
With so much taking place around us now, I forced myself to choose a topic for today’s blog that, although still estates related (this being, after all, an estates blog), allows me to think about something beautiful. I landed on art.
Full disclosure: I have blogged about art and estates before. See here and here for some shameless self-promotion. Without wanting to revisit these topics, I did some searching and was intrigued by this Financial Times article about the Art Loss Register (ALR).
The ALR is the world’s largest private database for lost and stolen art, antiques, and collectibles. Their services are essentially twofold. First, the ALR assists to deter the theft of art by promoting the registration of all items of valuable possession on its database and also the expansion of checking searches. Second, by operating a due diligence service to sellers of art, the ALR operates a recovery service to return works of art to their rightful owners. In addition, the ALR has expanded to negotiate compensation to the victims of art theft and the legitimising of current ownership.
In addition to art dealers, insurers, and museums, the ALR also assists private individuals including beneficiaries and trustees. A trustee who is intending to liquidate art may wish to rely on the ALR to prove title and authenticity, thereby potentially increasing value and mitigating risk of fraud.
If you find this topic to be interesting, please consider these other related blogs:
A wave of changes in how wills can be signed is sweeping over the legal profession with the force of a tsunami in the last month. While there is still momentum for change, why not include other areas of estate law like an online mechanism to search for unclaimed estate assets. Now is the time to do it.
In the United Kingdom the government posts a weekly list of estates with unclaimed property in those cases where the responsible local authorities were unable to find the legal heirs of estates. It is known as the “Bono Vacantia “ list, and it also provides instructions on making claims where someone has died and not left a will, or where family could not be located.
This publicly available list works well and is similar to the Bank of Canada’s online list of bank accounts with unclaimed balances that can be found here.
In Ontario, there is no publicly available system in place for unclaimed property, or for provincially regulated financial institutions like credit unions, or for estates with unknown heirs. There have been attempts in the past, but, legislation was never put into force. Other provinces, like British Columbia, do have systems in place. In Ontario, if the Office of Public Guardian and Trustee does not locate the beneficiaries of an estate then the money will remain unclaimed. There is no way for a beneficiary to search online for inheritance assets that they might be legally entitled to receive.
The current wave of changes in estate law forced by the pandemic also creates opportunities for further changes – why not do it now?
For more information on unclaimed assets please see:
Thanks for reading.
Are you an estate trustee? Is the estate being sued? Are there no, or insufficient, assets left in the estate to satisfy any judgment that may be obtained? Then plene administravit (or plene administravit praeter) is the doctrine for you!
Plene administravit is Latin for “fully administered”. It is pleaded where there are no assets remaining in the estate to satisfy any judgment and costs award that may be obtained. Plene administravit praetor means “fully administered except”, and is pleaded when there are some but insufficient assets in the estate to satisfy any judgment and costs.
Failure to plead plene administravit could lead to personal liability on the part of the estate trustee for the claim. As stated in Commander Leasing Corp. Ltd. v. Aiyede (1983) CanLII 1649 (ON CA):
It has long been established that if an executor or administrator has no assets to satisfy the debt upon which an action is brought, in the absence of a plea of no assets or plene administravit, he will be taken to have conclusively admitted that he has assets to satisfy the judgment and will be personally liable for the debt and costs if they cannot be levied on the assets of the deceased. If the executor has some, but insufficient, assets to satisfy the judgment and costs, a plea of plene administravit praetor will render him liable only to the amount of assets proved to be in his hands as executor”.
Where the doctrine is pleaded, the burden of proof falls on the plaintiff to show that assets existed or ought to have existed in the hands of the estate trustee at the time the action was commenced.
In Commander Leasing, the estate trustee distributed the proceeds of the estate to the beneficiary (herself), with knowledge of the claim. The Court had no difficulty in finding that as the doctrine was not pleaded, the estate trustee was personally liable for the judgment.
In Commander Leasing, the Court of Appeal also discussed the companion doctrine of devistavit. Devistavit, or a wasting of assets, is defined to be “mismanagement of the estate and effects of the deceased, in squandering or misapplying the assets contrary to the duty imposed on them, for which the executors or administrators must answer out of their own pockets, as far as they had, or might have had, assets of the deceased.” In Commander Leasing, the court found that in distributing the estate the estate trustee breached her duty as estate trustee, rendering her personally liable.
However, all is not lost if the estate trustee fails to plead plene administravit. In Brummund v. Baumeister Estate, 2000 CanLii 16988 (ON CA), the Court of Appeal upheld a trial judge’s decision to allow the defendant to amend the defence at trial to plead the doctrine. The Court of Appeal held that the plaintiff was not prejudiced by the amendment, as the facts underlying the application of the doctrine were fully canvassed at trial.
Have a great, plenus weekend.
This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss the purchase of estate assets by an estate trustee, and some steps that should be taken in the event of a purchase to ensure compliance with fiduciary obligations.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.