This blog post was written by Mohena Singh, Associate at Fasken LLP.
A recent Ontario Superior Court decision, Flowers v. Flowers, 2026 ONSC 3524, serves as a reminder that one of the most important decisions in any estate plan is the selection of an estate trustee. While many testators instinctively appoint a trusted child or family member, the role carries significant legal responsibilities. When those responsibilities are ignored, the consequences can be serious, not only for the beneficiaries but also for the estate trustee personally.
In this case, the deceased appointed her daughter as the estate trustee. At first glance, the appointment seemed uncontroversial. All four of the deceased’s children were equal beneficiaries of the estate and no one objected to the daughter’s appointment when she applied for a Certificate of Appointment in 2007. Nearly twenty years later, however, the estate remained unadministered, major questions persisted regarding estate assets, and a sibling was forced to commence proceedings to compel the estate trustee to account for her administration of the estate.
The court’s reasons read as a cautionary tale of what can happen when an estate trustee fails to appreciate the seriousness of the role. The estate included multiple real estate holdings, investment accounts, corporate shares, and foreign property. Yet the estate trustee admitted that her records were incomplete, acknowledged that the estate administration had been significantly delayed, and conceded that she had fallen short of her duties as estate trustee. The court found that she had failed to maintain proper books and records, could not provide a reliable accounting of estate assets, and was unable to verify her accounts.
The decision highlights a fundamental principle of estate administration: an estate trustee must always be ready to account for the assets entrusted to them. Estate Trustees are responsible for safeguarding estate property, maintaining accurate records of receipts and disbursements, and acting transparently with beneficiaries.
The court found that the estate trustee in this case had admitted to borrowing estate funds for her personal use, that she had co-mingled estate and personal assets, and that documentation surrounding those transactions was scant. The court also found her evidence lacked credibility and observed that she was either unwilling or unable to provide meaningful information regarding estate assets and transactions.
Although the court ultimately ordered the estate trustee to repay only a relatively modest amount to the estate, the decision demonstrates that financial damages are not the only consequence of deficient administration. The more significant finding concerned trustee compensation.
Many estate trustees are surprised to learn that compensation is not automatic. In Ontario, trustee compensation is a discretionary allowance awarded for the care, pains, trouble, and time expended in administering an estate. A trustee seeking compensation must first establish that they have properly discharged their fiduciary obligations and maintained adequate accounts. As the court reaffirmed, a proper accounting is generally a condition precedent to an award of compensation. Where a trustee fails to keep proper records or demonstrates a disregard for their fiduciary duties, they may be disentitled from receiving any compensation at all.
The court acknowledged that the estate trustee had performed certain tasks over the years. She had obtained probate, dealt with the Ottawa condominium, sold the Collingwood property, and attempted to address issues relating to foreign property in St. Kitts. Nevertheless, the court concluded that her misconduct outweighed those efforts.
Importantly, the court emphasized that the relatively limited damages ultimately ordered did not vindicate the estate trustee’s conduct. Rather, the modest recovery reflected the evidentiary difficulties caused by her own record-keeping failures. In the court’s view, it was the estate trustee’s poor administration and lack of cooperation that necessitated the accounting litigation in the first place. As a result, the court denied her compensation entirely.
For testators, the case is an important reminder that the choice of estate trustee should never be treated as a matter of convenience or family politics. The ideal estate trustee is not necessarily the oldest child, the nearest relative, or even the primary beneficiary. Instead, the role should be entrusted to someone who is organized, diligent, transparent, capable of maintaining detailed records, and willing to communicate with beneficiaries. In complex estates, consideration should also be given to whether a professional trustee or trust company would be better suited to administer the estate.
For individuals who have already accepted an appointment as estate trustee, this case is equally instructive. Estate administration often unfolds over years, not months. Memories fade, documents become harder to locate, and beneficiaries may eventually demand answers. Good record-keeping from the outset can prevent years of litigation and protect a trustee from allegations of misconduct.
Ultimately, Flowers v. Flowers demonstrates that choosing the right estate trustee at the planning stage can be one of the most important decisions a testator makes.
Thank you for reading.
