Posts tagged ‘executor’

January 24, 2013

Bankruptcy’s Effect on Costs Awards Against an Estate Trustee

I have commented previously on the use by courts of costs penalties against estate trustees who breach their fiduciary obligations through the misappropriation of funds under their control. However, a recent Ontario case dealt with one problem that may arise in recovering these costs – bankruptcy of the fiduciary.

In Re Baldwin Estate, the Court dealt with a contested passing of accounts of an attorney for property and later executrix of a deceased. The Court found that the fiduciary had engaged in “massive misappropriation”, failure to produce an accounting and failure to make proper production. While a settlement was reached regarding the misappropriation, the Court was asked to deal with the matter of costs. The Court found that the strict test for awarding costs on a higher, substantial indemnity, basis was met as a result of the fiduciary’s misappropriation of the deceased’s assets, a failure to account and her actions in dragging out the passing of accounts hearing. The Court ordered costs in excess of $87,000 to be paid personally by the fiduciary.

Of note, the Court made a declaration that the costs order is a debt which arises out of misappropriation while the attorney/executrix was acting in a fiduciary capacity and, pursuant to s. 178(1)(d) of the Bankruptcy and Insolvency Act (Canada) (the “BIA”), is a debt that is not capable of release by an order of discharge in bankruptcy. That section states as follows:

178(1) An order of discharge does not release the bankrupt from

(d) any debt or liability arising out of fraud, embezzlement misappropriation or defalcation while acting in a fiduciary capacity or, in the province of Quebec, as a trustee or administrator of the property of others.

The application of section s. 178(1)(d) to the costs ordered in this case provides an additional remedy to the objecting parties in that they will be entitled to pursue the costs even if the fiduciary makes an assignment in bankruptcy. What is particularly interesting here though, is that the declaration was made with respect to a costs order. The Court therefore had to find that the imposition of costs constitutes a “debt or liability arising out of” the fiduciary’s misappropriation of assets. The Court has therefore gone beyond applying s. 178(1)(d) solely to misappropriated funds to find that the section extends to costs consequences arising from legal proceedings instituted for the purpose of remedying the misappropriation – a creative use of the BIA.

October 24, 2012

Get Along with Your Co-Executor or It Will Cost You

We recently looked at a case where an estate trustee was held personally liable for costs as a result of his actions in connection with estate assets.  However, as a recent Alberta Court of Queen’s Bench case shows, if you are a co-executor, learn to get along with the other executor or you too may find yourself liable for costs.

In Bizon v. Bizon, a brother and sister were named co-executors of a third sibling’s estate.  The brother did not get along with the sister and their personal relationship affected his actions in connection with the administration of the estate.  He acted unilaterally with respect to assets, refused to provide information to the sister, and brought repeated motions that dealt only peripherally with the administration of the estate.  The motions, including a motion to remove the sister as a co-executor, were primarily directed at her personally, including allegations of bad faith, deviousness and lying.  None of these allegations were made out. 

In ordering that solicitor/client costs in connection with these motions be paid by the brother personally, the Court noted that the sister had little choice but to retain counsel in the face of her brother’s allegations.  The Court noted as well the obligation of a co-executor, even where he or she views the actions of the other co-executor to be unreasonable or wrong-headed, to try to resolve issues by explanation and discussion, not through the courts.  The Court described the bother’s actions here as attempts to “criticize, denigrate and try to bully his sister”.

Co-executorships can be difficult, especially where they involve family relationships that may not be the best.  Nonetheless, if co-executors fail to make the attempt to work together constructively to administer an estate, they may find the failure to cooperate to be financially, as well as emotionally, costly.

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October 17, 2012

A Lesson for Executors Regarding Costs

In an earlier post, we looked that a situation where a dependant sought severance of a joint tenancy in connection with a claim for dependant’s relief under Ontario’s Succession Law Reform Act.  The dependant was unsuccessful in a claim under s. 72 of the Act (which allows for a form of statutory severance of a joint tenancy for the narrow purpose of making assets available for dependant’s relief claims) because his application was brought outside of the six-month limitation period under the Act.

The issue of costs of the dependant’s relief application and other litigation involving the estate was the matter of reasons of the Court released earlier this month and include a lesson for all executors and their legal counsel.

The successful executor claimed costs in the total amount of $127,872 on a partial indemnity basis.  However, one of the dependant’s objections to the claim for costs was disclosure by the executor at a very late date that the estate did not have sufficient assets to satisfy a dependant’s relief claim, if successful.  The Court found that the executor had previously advised the dependant that the estate did have sufficient funds to satisfy his claim.  However, shortly prior to the hearing, the executor raised as a defence a paucity of assets.  The Court did find that there were insufficient assets to satisfy a claim, but found that had proper disclosure of the assets of the estate be made earlier, the dependant may have chosen not to pursue his claim.  As a result, while it appears the Court may have been willing to grant the costs sought by the executor, it reduced the fees claimed by 50% as a result of the late disclosure.

While it goes without saying that it is expected and imperative that an executor maintain proper accounts and records of assets, the failure to do so can result in significant and personal consequences.  It is not clear in this case whether there were assets in the estate to pay the legal fees of the executor as incurred.  If there were not, the executor may bear those costs personally.