All About Estates

Finally, A Nice Passing of Accounts

Passings of accounts can often be bitter and vicious. However, the case of Daniel Estate (Re), 2019 ONSC 2790 was a welcome “good news” alternative to the standard slugfest.

Linda and Ted cared for their elderly neighbours Isabel and Wayne for over two decades. The court noted that their relationship was akin to that of “loyal and dutiful family members.” Isabel and Wayne’s daughter had passed away and they had no other next of kin. Linda and Ted’s assistance was broad, ranging from banking, preparing taxes, household repairs, grocery shopping, taking them to medical appointments, selling their house and assisting with moving into assisted living. Linda and Ted were their neighbours attorneys for property and personal care. In the period of time when Linda and Ted administered their neighbours finances’ their assets grew from $6.06 million to $7.36 million.

After Wayne died, Isabel was not in a position to act as estate trustee. As such, Linda and Ted administered Wayne’s estate (it is not quite clear on what authority they did so). Upon the death of both Isabel and Wayne the residue of their estates will go to charity.

Isabel, while living in an assisted care facility, is still “mentally sharp.” As Linda and Ted have not received any money for their work over the years, Isabel suggested that they seek for their compensation to be approved in a passing of accounts. Isabel swore an affidavit in support of Linda and Ted’s application.

Linda and Ted sought compensation in three areas: as estate trustee for Wayne, as attorney for property for Isabel and Wayne and as attorney for personal care for Isabel and Wayne.

The court found that it was reasonable that as Linda and Ted administered Wayne’s estate should receive the compensation set out in the compensation agreement appended to Wayne’s will. As such, the court applied the formula and ordered estate trustee compensation in the amount of $129,775.00.

Given Linda and Ted handled their neighbours finances “meticulously and honestly”, the court had no issue applying the contemplated compensation scheme set out under the Substitute Decisions Act and thus ordered $435,772.36 in compensation.

The court noted that there was no formula or framework for assessing compensation for an attorney for personal care but that it must be guided by reasonableness and proportionality. Neither Linda nor Ted kept detailed dockets of time spent but were able to provide an estimate of the services they provided. Additionally, Linda and Ted retained an expert to estimate the costs of personal care services in the amount of $135,462.15. The court accepted this estimate and ordered this compensation.

In total, the court awarded $757,659.87 in compensation and $125,021.15 in legal fees for the applicants. The court also approved the payment of Isabel’s lawyer’s legal fees. As the ultimate beneficiary of Isabel’s estate will be charity, it was prudent of Linda and Ted to seek the court’s approval of their accounts.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: jkaufman@devrieslitigation.com

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