BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE'S ROLE – CONCLUDING THOUGHTS – WHAT TO DO ABOUT ABUSE CLAIMS? – PART VI

While a claim for damages against the assets of an estate for breach of parental fiduciary duty may be rare and fraught with evidentiary problems, it is clearly founded on the strong common law principals of fiduciary duty and the overall concept is supported by the Supreme Court of Canada. Given the nature of these claims, a case of this type can be persuasive and can present a compelling problem for any executor of an estate.

The head of damages has been identified by the Supreme Court of Canada and it really is a question of quantum. In the right circumstances, combined with a proper and legitimate will challenge, a claim of this nature can change the overall dynamics of any estate litigation matter. At the very minimum, it may have a salutary effect on the considerations of the executor and beneficiaries.

Nonetheless, given the evidentiary frailties of these types of claims, one must be careful not to embark on such an action without careful consideration of the cost consequences. In this regard, see Fox v. Fox Estate (1994), 5 E.T.R. (2d) 174 (Ont. Gen. Div.), (1996) 10 E.T.R. (2d) 229 (Ont. C.A.), Application for Leave to Appeal to the Supreme Court of Canada submitted September 13, 1996 and refused January, 1997; Schnurr, B.A., “Estate Litigation – Who Pays the Costs?” [1991], 11 E.T.J. 52; and Hull, I.M., “Costs in Estate Litigation”, 18 E.T.R. (2d) 218.

We hope this review of this interesting area of fiduciary duties has been helpful.

All the best, Suzana and Ian.