Today’s blog is written by Angela Casey, a Lawyer at de VRIES LITIGATION

How much compensation should be awarded to an estate trustee who has breached her duty of honesty and utmost good faith, was prepared to simply cut a cheque to pay out a claim against the estate without any investigation into its merits, and was prepared to use the threat of destroying the testator’s beloved pets as a means to try to extract benefits for her friends and herself?  Zero.  In Re: Watson Estate, Justice Lederer ruled that Josephine Polk, who had been removed as an estate trustee in an earlier decision [24 E.T.R. (3d) 124 (Ont. S.C.J.)], must pay back the $42,035 which she pre-took in compensation during her tenure as an estate trustee for the Estate of James Cameron Watson.

“Being asked to be the trustee of an estate”, writes Justice Lederer, “is not a gift.”  He continues:  “It is not a means by which a friend who dies provides assistance to those he or she leaves behind.   Being a trustee is a responsibility through which the deceased seeks the help of people he or she has faith in to be sure that the assets of the estate are distributed or disposed of consistent with his or her desires.  To misuse or fail to understand the task is a breach of the faith of the person who is dead.”

The first of Ms. Polk’s failings was her failure to disclose her own debt to the estate in the amount of $145,000.  When a piece of paper evidencing the debt was unearthed by the other estate trustees, she then used estate funds to have her lawyers research whether or not the estate trustees had the power to forgive her debt.

Her second chief failing was her inadequate handling of the claims asserted against the estate by the handyman who lived and worked at the Watson farm.  It appeared that each time the handyman made a claim against the estate (first asserting a life interest in his home on the farm, and then alleging a personal injury), Ms. Polk (who was not a beneficiary) appeared willing to simply pay out the claims without any analysis of their validity.

Finally, although the dollars involved were modest, the Court found that her handling of the testator’s animals amounted to a breach of trust.  The testator loved animals, and left the bulk of his estate to a foundation dedicated to their protection.  He had 2 cats and 3 dogs.  Rather than take steps to find the animals a permanent home, Josephine Polk moved all five animals into her home with her 6 dogs and 15 cats.  She then used estate funds to pay acquaintances to walk and care for all of the animals, including her own.  What bordered on the “unspeakable” (to use Madam Justice Low’s word), was Ms. Polk’s threat that if her own debt to the estate was not forgiven, she would have to destroy the testator’s animals.

For these actions, the Court found, the appropriate amount of compensation was none at all.

Thanks for reading,

Angela Casey