This week on Hull on Estates, David Smith and Nick Esterbauer discuss the principle of indemnification of estate trustees and the recent case of the Ontario Court of Appeal in Brown v. Rigsby, 2016 ONCA 521. (http://bit.ly/2biTez3)
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When a person accepts the role of Estate Trustee, it is a common assumption that they will be indemnified for any expenses incurred as a result of the administration of the Estate. This includes legal fees, which are typically recoverable from the Estate assets and take priority over distributions to beneficiaries. However, this is not always the case.
The denial of legal fees of an Estate Trustee has been ordered when all or a portion of the legal fees has been incurred to protect the personal interest of the Estate Trustee. This was the case in Etobicoke Human Society v. Rinaldi, 2015 CarswellOnt 20495, 14 E.T.R. (4th) 86 (Ont. S.C.J.). In this particular case, the Estate Trustee’s interests in propounding the Will were twofold. Not only did he have a fiduciary duty to propound the Will but also stood to gain a personal financial benefit from the Estate if the Will was successfully propounded.
The Estate and Trusts Reports recently published “Etobicoke Human Society v. Rinaldi: A Case Comment” written by Ian Hull and Suzana Popovic-Montag (the “Case Comment”), which interestingly, addresses the Court’s finding that an Estate Trustee does not have a duty to propound a Will when the testator’s capacity is challenged and therefore is not entitled to indemnification of legal fees.
I encourage you to read the Case Comment as it provides an excellent overview of the common law principles relating to an Estate Trustee’s duty to propound a Will and the underlying purpose for providing indemnification for reasonable legal costs.
You may also be interested to read: Solicitor as Trustee: Indemnification for Legal Fees
Thanks for reading!
We have blogged previously on section 35 of Ontario’s Trustee Act, which relieves a trustee who has committed a technical breach of trust but has otherwise acted honestly and reasonably. This provision may not be available to a trustee who, confronted with an ambiguous situation, fails to seek the advice and direction of the court, as is the trustee’s right under section 60(1) of the Trustee Act. Section 60(1) states:
60. (1) A trustee, guardian or personal representative may, without the institution of an action, apply to the Superior Court of Justice for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the assets of a ward or a testator or intestate.
Justice Cullity describes the applicable principles in Merry Estate v. Plaxton, 2002 CanLII 32496 (ON S.C.) at paragraph 35:
" On the question of costs, I am satisfied that no criticism can properly be directed at Mr. Meredith for bringing this application. Section 60 of the Act entitles trustees to seek the opinion, advice and direction of the court with respect to the administration of a trust and, in cases where significant doubt exists as to the scope of their powers and responsibilities, they may not be protected under section 35 if they fail to do this. Although such applications must not be made frivolously – and not merely to relieve applicants from making decisions that are part of their responsibilities under the terms of the trust – they are entitled to have their costs paid out of the trust property if, in the opinion of the court, the application was properly brought. I believe this is such a case."
Merry Estate v. Plaxton also contains a discussion of a trustee’s right of indemnity with respect to costs properly incurred, and the relationship between this right of indemnity and litigation cost awards for trustees from trusts. In that application for the court’s advice, the trustee Mr. Meredith was awarded full indemnity for his legal expenses in bringing the application.
Have a great day,
Chris M. Graham – Click here for more information on Chris Graham.
Listen to Trustees’ Rights to Indemnification.
This week on Hull on Estates, Suzana and Ian celebrate the 100th episode of Hull on Estates with the first part of a two episode discussion on a trustee’s right to indemnification.