Estate Planning

To Whom Does an Attorney Have a Duty to Account?

By Hull & Hull LLP

An interesting decision was recently released relating to an attorney’s obligation to account to people other than the estate trustee of a (deceased) grantor’s estate. 

In Guerin v. Read, the deceased died in December 2004.  The residual beneficiaries of her estate sought an order requiring the estate trustee to provide disclosure of the deceased’s financial documents from January 2004 to the deceased’s death or, in the alternative, that the estate trustee pass accounts for the period in which she acted as the deceased’s attorney for property; that is, September 2004 to the deceased’s death. 

It is worthwhile mentioning that all parties agreed that the deceased had been mentally competent up to her death. 

The estate trustee opposed disclosing the records for the period prior to the deceased’s death, arguing that, with respect to her actions as attorney, the only person to whom she had an obligation to account was the grantor (who had since died).

In Justice Herman’s decision, she referred to the complicating fact that, in this case, the deceased’s estate trustee and her attorney for property were one and the same.  As such, a true accounting could not occur as between the attorney and the estate trustee.  Justice Herman found s. 42(4) of the Substitute Decisions Act, which provides that “any other person, with leave of the court” could bring an application to compel an attorney to pass accounts, could, in appropriate circumstances, include the beneficiaries of an estate.

As such, she concluded the attorney could be required to account to someone other than the estate trustee and that disclosure in the manner sought by the beneficiaries was an essential part of this obligation.

Have a great day!

Megan F. Connolly

Full post as published by Toronto Estate Law Blog on May 28, 2008 (boomark / email).