Estate Executors/trustees are, at law, provided broad legal powers to administer the assets of the deceased person in accordance with the deceased person’s will or in accordance with the provisions of the Succession Law Reform Act in the event that the deceased person died without a valid will.
In recognition, in part, of this broad grant of legal authority executors are subject to a fiduciary, or trust duty, requiring that executors administer an estate in a businesslike ,responsible manner and in strict accordance with either the instructions in the deceased’s will or in accordance with the Succession Law Reform Act
When an estate trustee breaches that fiduciary duty the trustee may not only be liable on civil grounds to those beneficiaries the trustee has wronged but may also face criminal punishment (i.e. jail sentences or fines ) in the event that the estate trustee’s misconduct is flagrant enough to warrant criminal prosecution
The Canadian Criminal Code contains the following criminal charges which could possibly apply for estate trustee misconduct: section 332 (theft), section 336 (criminal breach of trust) sections 361 – 362(false pretenses) section 366(forgery) and sections 386-388 (fraud).
While section 331 of the criminal code specifically addresses crimes committed by a person holding a continuing power of attorney for property there is no specific provision in the criminal code which addresses criminal misconduct by estate trustees.
That being said section 336 of the criminal code could readily apply against estate trustee misconduct.
Barrie Hayes, Partner