Many people, when asked by a loved one to act as an estate trustee, feel sentiments of honour often mixed with a sense of duty and obligation. However, performing the role can also be onerous, particularly if one wants to do a good job. Unfortunately, as Erna Schneider found out in Aber Estate, 2013 ONSC 6363 (CanLII), thorough diligence in executing one’s tasks does not necessarily mean that all involved will recognize and appreciate your hard work—they may even make it harder for you to perform your role and add to your burden!
Ms. Schneider and her family lived approximately one block from her parents’ home and had lived near her parents for many years. As power of attorney for her parents, Ms. Schneider performed numerous tasks faithfully, including but not limited to: paying all expenses, employing and supervising caregivers, filing remittances for income taxes, attending to her parents’ investments and all of their banking, shopping for their groceries and taking them to their medical appointments. She kept all receipts and kept ledgers with expenses noted.
Ms. Schneider visited her parents twice a day to ensure that they were doing well and to supervise the caregivers. When the caregivers were not there, she took care of her parents herself. She, her husband and son looked after all of their home maintenance and repair requirements, including yard work. She testified that, in essence, she ran two households.
On the other hand, Hilda Heston-Cook, Ms. Schneider’s sister and the objector in this matter, had left Toronto as a young woman and currently resides with her husband in Texas. She returned to Canada to visit her parents one to two times per year. After their parents died and Ms. Schneider had been administering their estates as estate trustee for a time, Ms. Heston-Cook applied to have Ms. Schneider’s accounts reviewed by the court and requested copies and breakdowns of all investment accounts and a detailed accounting of other items. She questioned Ms. Schneider’s executor compensation and power of attorney fees and various cash transactions, including grocery/household expenses, medical expenses and records, pension cheques and roof repairs.
There were delays in having Ms. Schneider’s accounts reviewed by the court because of: (a) numerous requests by Ms. Heston-Cook for additional details, information and documentation regarding the account statements, (b) subsequent requests by Ms. Heston-Cook that the accounts be prepared by a certified accountant pursuant to standard accounting practices rather than in the form required by the Court in order that they could be submitted for audit, if Ms. Heston-Cook deemed necessary and (c) waiting for Ms. Heston-Cook to travel to Toronto and for her to review of all accounts and supporting documentation.
The court found that having considered the legislation and regulations, the principles set forth in relevant case law and the evidence before it:
(a) the compensation sought by Ms. Schneider as attorney and as estate trustee is fair and reasonable;
(b) there was no improper use of the funds to which Ms. Heston-Cook objected and they were properly and reasonably managed; and
(c) only the value of the home was to be adjusted and all other objections by Ms. Heston-Cook to be without merit.
It was clear throughout the proceeding that there was serious animosity between the sisters. It was also clear that Ms. Heston-Cook did not trust Ms. Schneider.
Testators (will makers) are, therefore, advised to consider the relational dynamics between beneficiaries and seek professional advice as needed to prevent the kind of acrimony and waste of estate assets and emotional energy that ensued in this case.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
