Re Hartin Estate: Contentious Passing of Accounts by an Attorney
Re Hartin Estate, 2024 https://canlii.ca/t/k7f74
Re Hartin Estate (“Hartin”),[1] involved an application to pass accounts by an attorney for property and Estate Trustee. Anna Evelyn Hartin (the “Deceased”) passed away on May 4, 2016, at the age of 92. She was survived by her five children, including Mary McInnis (“Mary”), her attorney for property and Estate Trustee in her Will, and the applicant Sharon Hartin (“Sharon”).
Towards the end of her life, the Deceased experienced a serious decline in her physical and cognitive health and moved into Mary’s home for approximately 17 months. Following which the Deceased’s health declined such that she moved into a nursing home where she would remain for 16 months, until her passing in 2016.
Mary applied to pass her accounts as both attorney for property and Estate Trustee of the Deceased’s Estate. Sharon objected to the accounts, arguing that the Deceased transferred funds and gave gifts to Mary in circumstances where a presumption of undue influence arose. Moreover, Sharon argued that Mary had not rebutted the presumption of a resulting trust regarding accounts jointly held by the Deceased and Mary and various gifts made to her. Lastly, Sharon argued that Mary did not keep proper records, and that certain funds and transactions were unaccounted for.
On the issue of undue influence, the court found that Mary failed to rebut the presumption, finding her testimony lacking credibility, being unpersuasive and containing inconsistencies regarding the Deceased’s financial autonomy. On the issue of the joint accounts, the court applied the presumption of resulting trust and found that Mary could not prove that the Deceased intended to make the various gifts to Mary.
On the issue of accounts, the court found that Mary failed to keep adequate records in her capacity as attorney for property and as Estate Trustee. The court found these failures significant enough to declare that Mary had breached her fiduciary duties and obligations. Mary did not account for various transactions, including:
- Unexplained cash withdrawals from the Deceased’s TFSA, and RIF investments;
- Significant amounts paid to herself from the Deceased’s property for renovations to her property;
- Unaccounted care costs paid to Mary when the Deceased was in a nursing home;
- Unaccounted tax refunds, death benefits and investment income; and
- Various monetary gifts from the Deceased to Mary, without corroborating evidence.
Given the forgoing, the court ordered Mary to reimburse the Estate in the amount of $127,167.70, revoked her Certificate of Appointment as Estate Trustee, and did not pass her accounts. Moreover, the court declared that Mary was not entitled to compensation for her services as Estate Trustee.
Hartin is a stark reminder of one of the core fiduciary duties, the requirement to account. In Ontario, a fiduciary must keep a complete record of their activities and always be able to prove that they administered property prudently and honestly. As demonstrated, an Estate Trustee who cannot satisfactorily account for estate property will be chargeable with them.[2] Moreover, their compensation will typically reflect their administration and accounting, and any expense caused through the Estate Trustee’s neglect means they may be liable personally.[3]
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[1] Re Hartin Estate, 2024 ONSC 5754.
[2] Chisholm v. Barnard (1864), 10 Gr. 479 (U.C. Ch.) at 481; Saunders v. Vautier: Trost v. Cook (1920), 48 O.L.R. 278 (Ont. H.C.); Zurosky Estate, Re, [1992] O.J. No. 1292 (Ont. Gen. Div.).
[3] E.E. Gillese, The Law of Trusts (Concord: Irwin Law, 1997) at page 52.
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Written by: Kimberly A. Whaley, Oliver O'Brien
Posted on: April 25, 2025
Categories: Commentary
Re Hartin Estate, 2024 https://canlii.ca/t/k7f74
Re Hartin Estate (“Hartin”),[1] involved an application to pass accounts by an attorney for property and Estate Trustee. Anna Evelyn Hartin (the “Deceased”) passed away on May 4, 2016, at the age of 92. She was survived by her five children, including Mary McInnis (“Mary”), her attorney for property and Estate Trustee in her Will, and the applicant Sharon Hartin (“Sharon”).
Towards the end of her life, the Deceased experienced a serious decline in her physical and cognitive health and moved into Mary’s home for approximately 17 months. Following which the Deceased’s health declined such that she moved into a nursing home where she would remain for 16 months, until her passing in 2016.
Mary applied to pass her accounts as both attorney for property and Estate Trustee of the Deceased’s Estate. Sharon objected to the accounts, arguing that the Deceased transferred funds and gave gifts to Mary in circumstances where a presumption of undue influence arose. Moreover, Sharon argued that Mary had not rebutted the presumption of a resulting trust regarding accounts jointly held by the Deceased and Mary and various gifts made to her. Lastly, Sharon argued that Mary did not keep proper records, and that certain funds and transactions were unaccounted for.
On the issue of undue influence, the court found that Mary failed to rebut the presumption, finding her testimony lacking credibility, being unpersuasive and containing inconsistencies regarding the Deceased’s financial autonomy. On the issue of the joint accounts, the court applied the presumption of resulting trust and found that Mary could not prove that the Deceased intended to make the various gifts to Mary.
On the issue of accounts, the court found that Mary failed to keep adequate records in her capacity as attorney for property and as Estate Trustee. The court found these failures significant enough to declare that Mary had breached her fiduciary duties and obligations. Mary did not account for various transactions, including:
Given the forgoing, the court ordered Mary to reimburse the Estate in the amount of $127,167.70, revoked her Certificate of Appointment as Estate Trustee, and did not pass her accounts. Moreover, the court declared that Mary was not entitled to compensation for her services as Estate Trustee.
Hartin is a stark reminder of one of the core fiduciary duties, the requirement to account. In Ontario, a fiduciary must keep a complete record of their activities and always be able to prove that they administered property prudently and honestly. As demonstrated, an Estate Trustee who cannot satisfactorily account for estate property will be chargeable with them.[2] Moreover, their compensation will typically reflect their administration and accounting, and any expense caused through the Estate Trustee’s neglect means they may be liable personally.[3]
—
[1] Re Hartin Estate, 2024 ONSC 5754.
[2] Chisholm v. Barnard (1864), 10 Gr. 479 (U.C. Ch.) at 481; Saunders v. Vautier: Trost v. Cook (1920), 48 O.L.R. 278 (Ont. H.C.); Zurosky Estate, Re, [1992] O.J. No. 1292 (Ont. Gen. Div.).
[3] E.E. Gillese, The Law of Trusts (Concord: Irwin Law, 1997) at page 52.
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