All About Estates

Has a Contingent Beneficiary Asked for an Accounting?

An estate trustee does not have an obligation to provide a contingent beneficiary with an accounting; nonetheless, some form of accounting is generally done at the request of a contingent beneficiary. If accounts are not provided, a contingent beneficiary may bring an application to compel an estate trustee to pass their accounts. This will be costly and may be what the contingent beneficiary is trying to avoid in requesting a more informal accounting.

In determining whether to provide a contingent beneficiary with an accounting, an estate trustee may wish to consider:

  • Beneficiaries, whether their interest is contingent or vested, are entitled to request an accounting from an estate trustee. However, an estate trustee is not typically obligated to formally pass its accounts in proper court format unless a court order compelling such  is obtained.
  • A person with a financial interest, such as a contingent beneficiary, may bring an application to compel a passing of accounts by demonstrating that there is benefit and good reason as to why an accounting should be provided.
  • Where an interested person is unlikely to obtain a vested interest in the estate, a court may find that their interest is too remote to warrant such an accounting. However, an estate trustee may wish not to completely rely upon this position, as the general trend in in the case law is that as long as the person seeking an accounting has a legitimate interest in doing so, which a beneficiary (contingent or otherwise) does, then an order may be granted.
  • The position of an estate trustee who does not want to provide an accounting may be enhanced if it can demonstrate that it has already accounted to a party, such as the Office of the Children’s Lawyer (“OCL”). If the OCL was satisfied with the accounting, this may bolster the argument that there is no benefit or need to account to the contingent beneficiary.
  • If an estate trustee does bring a formal passing of account application for other reasons, Ontario’s Rules of Civil Procedure provide that such application must be served on all beneficiaries, including contingent ones, in which case the contingent beneficiary would ultimately be served and the accounting would be disclosed.
About Tamar Silverbrook
Tamar Silverbrook is an associate in the Trusts, Wills, Estates and Charities group at Fasken. Tamar’s practice is focused on domestic and international trusts, as well as wills and estate planning. Tamar works closely with clients and/or clients’ advisors to draft the appropriate documents to facilitate estate and business succession plans that fulfill clients’ unique objectives. This includes providing advice on probate planning, disability planning, charitable gifting, asset protection strategies, cross-border estates and tax issues, personal privacy, family law matters and the interpretation of trusts’ provisions and the corresponding scope of authority provided to trustees. Tamar also advises trustees in administrating a range of complex trust matters.

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