Can a monitor be appointed by a Court to oversee the administration of the estate of a deceased by estate trustees?

In a recent decision of the Ontario Superior Court of Justice, the Court appointed a monitor to oversee the administration of the estate of an Ontario man by proposed estate trustees resident in the State of New York. The appointment was included in the Certificate of Appointment of Estate Trustee. The concept of a monitor, most familiar to insolvency practitioners, appears to be evolving in other areas of law. In this case, the appointment was a condition of a prospective surety that was not prepared to issue a bond to foreign estate trustees without supervision of the estate by an Ontario resident monitor. The appointment raises interesting questions, such as the liability of the monitor and his or her power should they disagree with the actions of the estate trustees. The order granting the Certificate of Appointment renders the monitor liable only for gross negligence or willful misconduct, implying that the monitor does not have the same fiduciary obligations of an estate trustee. Arguably, the restriction of liability is designed to reflect the restricted role of the monitor, as the order specifically precluded the monitor from taking possession of or otherwise dealing with estate assets.

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