Ontario Court of Appeal affirms denial of executor fee due to dishonest estate administration

In September 2024, an application judge of the Ontario Superior Court of Justice ruled that the appellant disentitled himself to executor fees by adopting a rapacious approach to administering his aunt’s estate. 

The judge held that the appellant provided incomplete accounts only when ordered and failed to keep proper accounts as attorney for property, executor, and trustee under s. 6 of the Accounts of Records of Attorneys and Guardians, O. Reg. 100/96, and s. 48 of Ontario’s Estates Act, 1990. 

The judge determined that the aunt was incapable of instructing the appellant on how to manage her property because she could not understand the relevant information to reach these decisions or fully appreciate the reasonably foreseeable consequences. 

The judge found that the appellant: 

• did not have much to do since the aunt prearranged her funeral and ensured that her estate was all in the form of money upon her death 
• dishonestly made preliminary distributions to himself, his wife, and one of his brothers to avoid probate and estate tax 
• paid himself nearly $10,000 six months after his aunt’s death and before paying any estate beneficiary, even though the will did not provide for advance compensation 
• charged attorney’s fees for money he paid himself 
• charged his aunt for sizable and unnecessary fees, including expenses to maintain the aunt’s home and install cable television and a high-speed internet connection, even though it was evident by that point that she would never reside there again 
• charged his aunt expenses to attend her own funeral 
• never visited his aunt without being paid 
• failed to make gifts to charities, as provided by the aunt’s will 

Repayment ordered

The application judge directed the distribution of the estate money and ordered the appellant to repay the estate: 

• $58,694.40 for an honorarium 
• $26,652.38 for attorney-for-property compensation 
• $20,647.86 for his gift to himself 
• $20,647.86 for the gift to his wife 
• $9,600 in executor fees 

The appellant appealed the judge’s decision. The Court of Appeal for Ontario dismissed his appeal with costs. 

First, the appeal court acknowledged that the judge’s reasons were sparse. However, the appeal court decided that the reasons were adequate, addressed the live issues in this matter, and permitted appellate review. 

The appeal court said the appellant failed to establish that the judge overlooked anything in the record that could have impacted the decision. The appeal court noted that the voluminous record mostly consisted of accounting records. 

Next, the appeal court ruled that the appellant failed to show any palpable and overriding error or error in principle in the judge’s finding that the aunt lacked the capacity to issue instructions. The appeal court held that the judge’s reasons for his credibility assessment were sufficient and supported by the evidence. 

Lastly, the appeal court found no error in the judge’s exercise of his authority to order the appellant to repay the estate specific amounts due to his misconduct.