Simon's Legal Resources

Trusts - Legal Fees

. Benjamin Cochrane Trust (Re)

In Benjamin Cochrane Trust (Re) (Ont CA, 2023) the Court of Appeal holds that legal costs of a trustee may be disallowed on breach of their duties, here the duty to account:

[69] The appellants stress that trustees cannot be deprived of properly incurred legal fees without good reason, relying on Birks v. Micklethwait (1864), 33 Beav. 409:

Now, nothing ought, I think, to be adhered to more sacredly than the general principle, which is, that a trustee or executor having done his duty, having faithfully accounted, and having brought forward the estate committed to his charge, should not be deprived of his costs upon light grounds.

[70] I note, though, that the principle laid down in Birks – that trustees should not, generally speaking, be deprived of costs – is premised on the trustee “having done his duty”, and “having faithfully accounted”.

[71] In this case, the trial judge found that the appellants had failed in their primary duty to account, had rendered accounts that were misleading, and had falsified documentation. She also found that the trial “was unduly long and complicated” because they failed to keep proper accounts and that “[m]ost of the time and expenses associated with th[e] trial could have been avoided” had they fulfilled their duty. I would not interfere with the trial judge’s decision to require the trustees to pay their legal fees and expenses personally in these circumstances.