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.
Sep 5, 2025
On June 16, 2025, important amendments to the Rules for obtaining court approval of settlements involving parties under disability came into force.[1] These amendments preserve the open court principle to the greatest extent possible while ensuring that incapable parties are not prejudiced by processes designed to protect them.
Under Rule 7.08 any settlement involving a party under disability[2] is not binding on that party without a judge’s approval of the settlement. A judge must find that the settlement is in the best interests of the incapable party, considering the benefit received under the settlement, litigation risk, proportionality, and the desire to settle.[3] This safeguard is built into our judicial system to ensure that parties under disability are not taken advantage of.
To obtain settlement approval, the incapable party’s litigation guardian must bring a motion to the court, supported by an affidavit from the litigation guardian explaining the reasons in support of the settlement, as well as an affidavit from the litigation guardian’s lawyer providing a position in respect of settlement.
Under the previous rules, it was necessary to serve the motion for settlement approval on all parties to the litigation. In some cases, to show a judge why a settlement is justified and in the incapable party’s best interests, it is necessary to disclose weaknesses of the incapable party’s case. This created a risk: if the settlement were not approved, the other parties could potentially benefit from prejudicial information disclosed in the approval motion. Counsel were required to carefully consider what information was necessary to provide the court without undermining the party’s position if the settlement was not approved.
The new amendments contain key changes that ensure parties under disability are not prejudiced by these motions.
Rule 7.08(3.1) now allows settlement approval motions to be brought without notice to other parties and without requiring service of the supporting materials (unless a judge orders otherwise).
Pursuant to Rules 7.08(4.2) and 7.08(4.3) counsel are required to redact or omit any information subject to solicitor-client privilege or that could prejudice the person under disability prior to filing the motion materials. Now, only the judge hearing the motion is provided with a copy of the complete and unredacted version of the materials.
Rule 7.08(4.4) requires that settlement approval motions be determined in writing, without the attendance of the parties, and dispenses with the requirement to file a factum. This prevents opposing parties from hearing oral submissions on evidence that was redacted or omitted from the written materials.
These amendments helpfully and thoughtfully ensure that the court receives fulsome information about a party’s litigation risk, weaknesses in the case, and any other factors that support settlement, without risking prejudice to the incapable party’s position if the settlement is not approved.
[1] This blog focuses on Rules 7.08(3.1), 7.08 (4.2), 7.08(4.3), and 7.08(4.4). For a review of all amendments that came into force on June 16, 2025 please review O.Reg 50/25.
[2] Parties “under disability” include minors and adults who lack the mental capacity to engage in litigation.
[3] Spicer v Wawanesa Mutual Insurance Company, 2023 ONSC 3221
Rebecca Suggitt
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.
Aug 27, 2025
I’ve always enjoyed learning languages. I am a native English speaker, my mother tongue is Cantonese, I have a minor undergraduate degree in French, and I took a beginner German course while on exchange in Hamburg, Germany. If I hadn’t studied law, I would have probably enjoyed studying linguistics or mastering another language! American Sign Language has long intrigued me, so this past Spring I decided to finally take the plunge and enrolled myself in the 10-week introductory ASL class held at Bob Rumball Canadian Centre of Excellence for the Deaf. I am proud to say that I passed the 1A class and will be enrolling in the 1B class next term.
Being an ASL student reminded me what it’s like to learn a new subject from scratch. I’ll readily admit that it was hard! I greatly admire my enormously patient teacher, who was never frustrated at her students even when she had to repeat herself eight times for us to finally understand what she was trying to convey.
Reflecting on this experience, I realized there were many lessons that I could take away from my ASL class and apply to my day job that could make me a better lawyer.
Sharper Observation Skills
ASL is, obviously, a visual language. What you may not know is that there are many signs that are very similar and are only distinguished by a slightly different hand shape or hand movement. Facial expressions are a crucial part of signing: eyebrow raising and lowering are used when asking questions, and mouth movements are required to accompany some signs. Body shifts are used to convey contrast or different options. So, it is important to carefully watch the signer and pay attention to their non-verbal cues that can change the meaning of their words.
Non-verbal cues are just as important in lawyering as learning ASL. Lawyers must use their observation skills to monitor whether a judge is getting impatient or losing steam during long oral submissions, or if a judge is suddenly paying more attention to a certain argument being made. We keep a close eye on the non-verbal conduct of a witness being examined – if they are being fidgety, avoiding eye contact, or other body language signals that they are uncomfortable with a question, the examiner might want to lean in on that line of questioning. Learning ASL has taught me to be a keen observationist, as visual cues are often just as important as oral cues in our profession.
Clear and Concise Communication
ASL is a very concise language. A few signs can convey a lot of meaning. Whereas the English language can contain a lot of filler words, ASL gets right to the point. It is a good reminder that effective communication can be achieved through a few carefully chosen and purposeful words, rather than long, run-on sentences with lots of legalese and flowery language. Whether that’s in written legal submissions, oral advocacy, or simply explaining legal concepts to clients, I strive to hone the skill of clear, concise, and persuasive communication in my practice.
Empathy and Patience
The most important lesson of all that I learned during my 10 weeks of ASL class is to have more empathy and patience. Learning a new language from scratch was so much fun and an academic challenge at the same time. I have much more empathy for my clients and self-represented litigants who are learning the “legal language” and navigating the legal system for the very first time. I imagine that learning a new language and being involved in litigation for the first time are similar experiences, as you are being thrown in and immersed in a brand new setting, and expected to keep up and follow along as your instructor speaks or signs rapidly in a foreign language. It is extremely intimidating.
Being a student of ASL has reminded me that I, as a lawyer, need to slow down, remember that my clients may not understand everything I’m saying, explain concepts in digestible and plain language (and to explain it again if they need it repeated), and encourage my clients to ask questions. I endeavour to be as patient, understanding, and kind to my clients as my wonderful ASL teacher was to me and my fellow students.
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.
