Oct 8, 2025
When a loved one passes away, their executor (the person named in the will to manage the estate) steps into a huge responsibility. They must pay bills, manage assets, and distribute property to beneficiaries. Sounds straightforward, right?
Not always.
One Ontario case, Zimmerman v. McMichael Estate, shows exactly what can go wrong when executors don’t keep proper records. The court’s message was clear: executors must document everything, or risk personal consequences.
What Happened in Zimmerman v. McMichael Estate?
At the heart of the Zimmerman case was a simple, but critical, problem: the executor had not kept proper records of how estate assets were handled. Beneficiaries grew suspicious that money had been mishandled, and when they asked for an accounting, the executor could not produce satisfactory documentation.
The court ultimately found that this lack of transparency was unacceptable. Executors are fiduciaries, meaning the law requires them to act with honesty, care, and loyalty to the beneficiaries. That duty includes maintaining a clear record of every decision and transaction made on behalf of the estate. Without proper documentation, the executor could not prove that they had fulfilled their obligations.
What This Means for Executors
The Zimmerman case serves as a cautionary tale for anyone serving as an executor. Even if an executor is acting in good faith, failing to keep proper records can backfire. Without receipts, statements, or written explanations, beneficiaries may begin to question whether funds were used appropriately. Once trust is lost, disputes are far more likely to end up in court.
Executors must remember that they can be held personally accountable if they cannot justify their decisions. In the Zimmerman case, the court made it clear that the burden of proof rests on the executor, not the beneficiaries. This means that careful and consistent record-keeping is not just best practice – it is essential for protecting both the estate and the executor.
How Good Records Protect Families
Keeping good records benefits everyone involved in the estate process. For executors, proper documentation provides a shield against false accusations or misunderstandings. It allows them to show, step by step, that they carried out their duties responsibly and in line with the law.
For beneficiaries, good records build confidence in the process. They can see exactly how assets are being managed and distributed, which reduces suspicion and helps preserve family relationships at a time when emotions may already be strained. Most importantly, proper record-keeping prevents unnecessary litigation, saving the estate both time and money!
How Executors Can Stay on Track
Being an executor can feel overwhelming, especially if it’s your first time taking on the role. The reassuring news is that you don’t have to navigate it alone. Keeping receipts, bank records, and important correspondence together in one place goes a long way in staying organized, and offering regular updates to beneficiaries helps build trust and keep the process running smoothly.
If you feel unsure about the process, it’s completely normal to reach out to a lawyer or accountant for guidance. They can take some of the weight off your shoulders and make sure everything is done properly. By staying organized and asking for help when needed, you can carry out your duties with confidence and peace of mind.
The Takeaway from Zimmerman v. McMichael Estate
The lesson from this case is straightforward: record-keeping is not optional. Executors must document every action they take in administering an estate. Doing so protects them from liability, reassures beneficiaries, and ensures that the wishes of the deceased are respected.
Diana Begaliyeva
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Oct 8, 2025
I love hearing from readers of our blogs. It’s exciting to know people are reading and thinking about them, but beyond that, it’s such a pleasure to connect with other lawyers and discuss the law, outside of any specific dispute.
In my blog of January 9, 2024, When Does Marriage Revoke a Will, I puzzled about the Bill 245 amendments to sections 15 and 16 of the Succession Law Reform Act, which repealed the sections on marriage revoking a Will, and when those amendments could be said to take effect. Did they apply only to marriages after December 31, 2021 (the date the amendments took effect), only to Wills made after that date, or only for Deceased people who died after that date? Without a transition provision, it was not entirely clear.
Since writing that blog, I have heard from counsel who argued the case that the court has decided this issue. In Bolotenko v Wright Estate, 2025 ONSC 1154, the estate trustee, Aleksandr Bolotenko, sought direction from the court on whether Bill 245 applied retroactively. In that case, the Deceased died in April 2022 (after the SLRA amendments), his Will was dated March 8, 1999, and he married in February 2003. The estate trustee sought direction on whether the Bill 245 applied retroactively such that the Will was not revoked. The court held that there was no retroactive application: any marriage before January 1, 2022 had the effect of revoking any existing Will.
Now comes an interesting twist, flagged for me by another lawyer/blog reader. If the repeal of SLRA section 15(a) (which previously stated that a Will is revoked by marriage) only applies to marriages after December 31, 2021, does the repeal of the saving provisions in section 16 have a similarly delayed application?
Section 16 was repealed in its entirety by Bill 245. Previously, it set out specific situations where a Will could remain in effect despite a subsequent marriage:
16 A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
Logically, it seems that the timing of the section 16 revocation must follow that of section 15(a). If marriages before January 1, 2022 revoked existing Wills, then the section 16 provisions remain in place to save such Wills that would otherwise be revoked. The court in Bolotenko v Wright Estate applied as much. The court at paragraphs 1-2 considers whether the Will had any saving provision as described in the old section 16 (a). This seems to suggest that section applies in its entirety to pre-January 1, 2022 marriages. For example, a spouse could continue to elect under the old section 16(b) to take under the Will, regardless of its revocation.
I look forward to reading and hearing more about the court’s consideration of these provisions!
Laura Cardiff
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Oct 3, 2025
As the first point of contact for our firm, I receive numerous calls from potential clients seeking legal advice and assistance with respect to estates and wills.
The following are three commonly asked questions and answers to these questions:
1. Probate
Q: I am named as the executor and estate trustee in a Will. I am at a loss. Where do I start?
A: Reaching out for legal advice is the first step, which you have taken.
As an executor and estate trustee, you may have to probate the Will and obtain a Certificate of Appointment of Estate Trustee (CAET).
In a case where the deceased died intestate (without a Will), before you start an application for probate it is recommended that you check whether anyone else has already started a court application or has been issued a certificate. This can avoid an objection to your application.
It is also important to know the value of the estate and what makes up the estate, for example, real estate and personal assets.
You can apply for a Small Estate Certificate if the estate is valued at up to $150,000. If the estate is valued at more than $150,000, generally, you should apply for a Certificate of Appointment of Estate Trustee.
When applying for the CAET, you will need to supply the court with the following original documents:
- Probate Application for a Certificate
- Request to File an Application for a Certificate
- Draft Certificate
- Last Will and Testament of the deceased (if available) and Affidavit of Execution
- Original or notarized copy of the Proof of Death Certificate for the deceased
- Cheque for estate administration tax (also known as probate tax)
Within 180 calendar days of receiving the CAET, you must file an Estate Information Return (EIR), which lists the value of the deceased’s assets at the time of death with the Ministry of Finance.
(For further information on how to obtain assets from financial institutions, please see our blog of July 18, 2025 by Olesya Johnson).
2. Joint Accounts
Q: I held joint accounts with the deceased and the bank is asking for a probate certificate before they can release the money. Why?
A: Some joint accounts may or may not fall within the value of the estate.
A joint account with right of survivorship is an account held by two or more people where the surviving account holder(s) receive the funds upon the deceased’s death and generally does not need to go through probate.
In the case of joint spousal accounts, they typically fall outside the estate by right of survivorship.
However, in the case of joint accounts between parent and child, it could fall within the estate under the presumption of resulting trust. In this case, the bank may require the estate trustee to obtain a probate certificate before releasing the funds.
The testator’s intention as to whether the joint account is to be shared with other beneficiaries of the estate or simply pass directly to the survivor should be considered.
(For further information on joint accounts and the presumption of resulting trust, please see our blog of May 15, 2025 by Cara Zacks).
3. Delayed Distribution and Accounting of Estate Assets by Estate Trustee
Q: It is almost two years since the estate trustee obtained probate. The estate trustee has not made final distributions and is not providing any accounting information on the estate. What can I do?
A: An estate trustee can generally distribute the estate assets within a year. However, based on the complexities of the estate, it could take longer.
Once the estate has been administered, the estate trustee should pass their accounts to show that the estate assets are properly managed. This is called a “passing of accounts”. If the estate trustee fails to do so or refuses to provide information on the estate, any of the beneficiaries in the estate can retain a lawyer to make an application to the court to compel the estate trustee to pass accounts or have the estate trustee removed.
Roslyn Blackette
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 18, 2025
I work all night, I work all day, to pay the bills I have to pay
Ain’t it sad?
And still there never seems to be a single penny left for me
That’s too bad…
My colleague Rebecca Suggitt previously blogged about the importance of keeping proper accounts as an attorney or guardian of property. One of the reasons she gave was that a guardian or attorney’s compensation is tied directly to the receipts and disbursements person under guardianship or attorneyship (who will be referred to as the “incapable person”).
Generally, the rule that applies to a guardian or attorney’s compensation is a charge of 3% on all receipts and disbursements in the guardianship or attorneyship accounts, per the regulations under the Substitute Decisions Act, 1992. (For simplicity, I will use the term “fiduciary” to mean “guardian” or “attorney” for the remainder of this blog, but be aware that “fiduciary” is a broader term that is not limited to guardians or attorneys.)
The broad purpose of this 3% charge is to compensate fiduciaries for the work they do to manage the incapable person’s assets, such as paying their bills, purchasing necessities and personal items, and collecting and managing money from their sources of income.
However, like many legal principles, there are exceptions to this general rule. There are certain receipts and disbursements that the 3% charge should not be applied to. Below are a few commonly seen non-compensable transactions:
Transfers Between Accounts
People often own more than one bank or investment account. The fiduciary may need to move money from the savings to chequing account to pay the incapable person’s monthly bills, or decide to invest the excess funds in chequing account by moving it into an investment vehicle. These transfers will appear in the accounting as a disbursement (when the money leaves the original account) and a corresponding receipt (when the money is deposited into the second account). But, because the money is not leaving the guardianship/attorneyship to pay a third party, nor is new money coming in, these are not compensable transactions. They should be recorded in the accounting bookkeeping or “memo” transactions only.
Refunds
The accounts will reflect refunds, for instance, when items are returned to a store and a credit is issued back to the incapable person. The refunded money will appear in the accounting as a receipt. Since these receipts are not deposits of new money or income, they are not compensable transactions.
Capital Losses
Capital losses occur when an asset is sold for less than its adjusted cost base. The fiduciary may need to liquidate stocks, investments, or other assets because the incapable person needs cash to pay for their expenses. Capital losses appear in the accounting as disbursements. However, they are not true disbursements because no money leaves the guardianship or attorneyship to pay for a good or service. As such, they are non-compensable.
Compensation Paid to the Fiduciary
Fiduciaries are permitted to pay themselves compensation on a monthly, quarterly, or annual basis, pursuant to the Substitute Decisions Act, 1992. If so, the accounts will reflect compensation payments to the fiduciary throughout the period of accounting. As it would be duplicative for the fiduciary to pay themselves for paying themselves, these transactions are non-compensable.
How to Reflect Non-Compensable Transactions in the Calculation for Compensation
The value of these identified non-compensable transactions should be deducted from the value of total receipts and disbursements during the accounting period. After making all deductions, apply the 3% to the net receipts and disbursements to calculate the compensation.
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 29, 2025
When it comes to scheduling a date with the courts and subsequently serving and filing materials, you must first consult your region’s Practice Directions. These handy guides provide detailed steps to ensure your date is secured and your materials are provided to opposing counsel and your presiding Judge.
The Superior Court of Justice is divided into eight different regions, each with their own Practice Direction:
- Central East: Barrie/Bracebridge, Newmarket, Oshawa, and Peterborough/Cobourg/Lindsay,
- Central South: Hamilton, Kitchener, St. Catherines, Welland, Brantford, Simcoe, and Cayuga
- Central West: Brampton, Orangeville, Guelph, Milton, and Owen Sound/Walkerton,
- East: Ottawa, Kingston, Belleville, Brockville, Cornwall, L’Orignal, Napanee, Pembroke, Perth, and Picton
- Northeast: Sudbury, Cochrane/Timmins, Gore Bay, Haileybury, North Bay, Parry Sound, and Sault Ste. Marie
- Northwest: Thunder Bay, Kenora, and Fort Frances
- Southwest: Chatham/Kent, Goderich/Huron, London/Middlesex, Sarnia/Lambton, St. Thomas/Elgin, Stratford/ Perth, Windsor/Essex, and Woodstock/Oxford
- Toronto: This region of the Superior Court of Justice includes the Estates List, Civil List, and Family List. Importantly, each of these lists have their own practice direction.
Practice Directions provide an up-to-date overview of the court’s scheduling, filing and administrative procedures. Importantly, these directions are separated by the subject of the matter, such as civil law, family law, and criminal law.
While each court will have varying directions, there are some consistencies across the regions, such as:
If you find that a region’s Practice Direction does not adequately address your questions, you can do the following:
- Consult the consolidated Provincial Practice Directions
- Contact the court’s administration and ask them to clarify their scheduling and filing procedures
- Review the Rules of Civil Procedure
*(When in doubt, it is always best practice to review the Rules. They govern the entire Superior Court of Justice and are the basis of all region’s court procedures.)
Remember to always read the most recent iteration of a region’s Practice Directions and Notices to the Profession. These guides are often amended to reflect updates to court’s scheduling and filing procedures.
Hannah Henley
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
