Trusts

Kingston and Eastern Ontario Trusts Lawyer

A person who has been appointed as a personal representative (executor) in a will has the very important responsibility of managing and controlling the estate upon the testator’s death. Similarly, a trustee is responsible for carrying out the terms of a trust.

Trustee Disputes

An executor named in a will is not required to assume that office but once he or she has begun fulfilling such duties then he or she is obligated to fulfill all of the obligations arising from the appointment. If you have been appointed to act as the personal representative of an estate and do not wish to assume that duty then you may renounce your entitlement to act as the personal representative and file that renunciation with the court. However, once a Certificate of Appointment of Estate Trustee has been issued by the Court, a personal representative may only be discharged of his or her duties by court order.

Questions can arise over how a personal representative or trustee disburses assets and manages the estate. Many executor or trustee disputes occur over issues of appropriate compensation. The compensation of an executor or trustee for the services and management they provide can seem excessive to the beneficiaries. Alternatively, because of long simmering family tensions beneficiaries may be unwilling to accept that a portion of the estate assets will be paid out to the personal representative of the estate. Such disputes can be costly and contentious because a careful balance between appropriate and excessive compensation can be difficult to negotiate, especially where it is not specifically addressed in the Will.

Less frequently, beneficiaries of wills and trusts may seek to have the personal representative or trustee discharged of duties and removed from office by reason that the estate or trust has been grossly mismanaged. Moreover, a removal order may be sought by a trustee who is unable to work with a co-trustee or cannot resolve a fundamental disagreement respecting the management of the estate.

Varying Trust

Circumstances may arise where it is advisable to vary the terms of a trust. Often a trust document does not grant the trustee authority to vary the terms of the trust. A trust may be varied in several ways.

In Ontario, where all persons who are absolutely entitled to the trust assets have requisite capacity and are 18 years of age or older, agree, the trust can be varied or concluded.

However, where beneficiaries of a trust are not able to provide consent to a variation or termination of a trust themselves, as a result of minority, or other legal disability, the court may approve a variation of the trust on behalf of the minor or person under legal disability. The court will only vary the trust in accordance with the Variations of Trusts Act where there is a benefit to all persons on whose behalf the court is being asked to provide consent.

In Ontario, The Children’s Lawyer represents the interests of minors and unborn potential beneficiaries of a trust. A variation requires the support of The Children’s Lawyer.

The court has jurisdiction to aid in the preservation of the trust and to support the administration of the trust assets by trustees. Consequently where questions arise concerning the administration of a trust, a trustee may make an application to the court at any time for the advice and direction of the court.

To get the professional help you need related to trusts and estate law in Kingston, Eastern Ontario, and the surrounding areas, contact Fleming Estate Law today.