The Diligent Executor: The Estate Trustee’s duty to search for Heirs

When a person dies, one of the first things that members of the family should do is attempt to locate the Will of the deceased. A search must be made for the most recent Will among the deceased’s documents, in his or her safety deposit box, with the deceased’s family members, with any lawyer who may have previously acted for the deceased, or at the Estates Office where the deceased may have deposited an original Will.

Sometimes the original Will is kept with the lawyer who drafted it for safe storage, sometimes it is with the client, and sometimes it is deposited with the court. If a Will is still not found, it may be necessary to place an advertisement in the Ontario Reports and local newspapers for anyone with knowledge of the Will. For this reason, it is the best practice for estate lawyers who prepare Wills to regularly review the obituaries in the local papers to determine whether a deceased client may have a Will that was left with the Lawyer.

Let us assume no Will is located. A spouse, person living in a conjugal relationship with the deceased immediately before death, or relative of the deceased might seek to apply for a Certificate of Appointment as Estate Trustee without a Will. The applicant will have to swear an affidavit that he or she made a careful search and inquiry for a Will and that he or she believes the deceased did not leave a Will. Proof will need to be shown that no Will or Codicil was deposited with the Superior Court of Justice.

Under s 24(1) of the Estates Administration Act, the estate trustee (another name for the executor) must make “reasonable inquiries” for persons who may be entitled by virtue of a relationship traced through a birth outside marriage. This will include, at a minimum, searching the records of the Registrar General relating to parentage. It is important to note that the need to conduct reasonable inquiries can extend to the bequest of a Will where, for example, the testator leaves the estate to his or her children equally between them, and there is a beneficiary child born outside of wedlock that might now be thought to be living in Australia or Texas.

The legislation does not define “reasonable inquiries” and the case law does not provide much guidance either. Nonetheless, the estate trustee and advising lawyer must protect the estate trustee from liability, as an estate trustee may be liable in negligence for not making sufficient inquiries to locate the heirs. The executor might be liable for devastavit—i.e. mismanagement, waste or maladministration by an executor—a dereliction of duty by the estate trustee if you like.

As noted in Re Short Estate, [1941] casual inquiries will be insufficient to discharge the duty of “reasonable inquiries.” After all, it is when someone dies that estranged heirs start popping up on the board—cousins or nephews and nieces of the deceased might come out of the woodworks demanding their entitlements—and therefore the executor must ensure his or her administration is not vulnerable to attack by an overlooked beneficiary.

The estate trustee should begin by making inquiries of family members who might know whether there is any knowledge of children born outside of wedlock. If the family know of no child born outside of wedlock and no reason to believe there are any, the estate trustee may have discharged his duty of “reasonable inquiries.” However, where there is knowledge of a missing heir, the estate trustee might advertise in the place where the missing heir was last heard or believed to reside and might also hire a private investigator to make inquiries. Similarly, as Monique Charlebois has written in “The Estate Trustee’s Duties to Search for Heirs” (2004), for a missing child born outside marriage, the “estate trustee should consider advertising where the missing child was last heard or believed to reside, and possible hiring a private investigator to do some further personal investigation.”

The scope of “reasonable inquiries” has no doubt expanded in the era of the Internet and the development of ancestry databases, thereby reducing the cost of conducting family history searches. However, the standard of due diligence expected of estate trustees has risen. It is suggested that, in the majority of cases a missing individual or a complete family tree report can be obtained for less than $5,000 CAD.

If searches for a missing heir or known child born outside of wedlock are unsuccessful, the best practice would be to apply to the court for directions, but the expectation of the court will be that some form of advertising was carried out in an attempt to locate the missing heir in the location where the entitled person is known or reasonably likely to reside.

The precise mechanics and sources of the inquiries are beyond the scope of this blog. However, to locate where a known heir is living, potential sources might include contacting former employers and neighbours, lawyers who acted in a divorce or property sale involving the person, and searching credit agencies or driver’s licence records. Inquiring whether the known heir is deceased might involve carrying out vital statistics searches, cemetery searches or searching death records. Whether the heir married and had children might involve searching census records, obituaries, hospital admission records, divorce records, and so on.

In terms of the extend of “reasonableness”, in Parker (Re) the court suggested that the size of the estate or of the shares of any missing heirs will be an important factor in determining the extent of inquiries. The test of reasonable inquiries will naturally be more onerous the larger the estate.

Finally, what is the best evidence in terms of proving heirship? In Re Tehan (1928), the court held that evidence proving heirship is that which would be reasonably sufficient to satisfy a “careful and prudent administrator” as to persons entitled to share in the distribution of the estate.

If having a Will and Powers of Attorney interests you, you can send me a confidential email to colincuttress@outlook.com or call me at 647 643-2065.

Colin Cuttress, Barrister & Solicitor

Other areas of my practice: -Litigation -Employment Law and Sports contracts -Corporate law -Human rights law