Words and Phrases - "trustee de son tort"

The taxpayer, and his brother, James, became executors of their father’s estate in 1994. Most of the estate was left to James, and a portion was left to grandchildren and great-grandchildren. Mr. Mingle testified that he sent a handwritten note to his brother renouncing his executorship two month’s after their father’s death. The will was never probated. In 2010, the Mr. Mingle jointly signed various documents, purportedly in his capacity of co-trustee, to transfer what was considered to be his daughter’s her share of the estate, in the form of a $240,000 mortgage against an estate property. The taxpayer was assessed under s. 159(3), as no clearance certificate had first been obtained.

Wong J found that in fact that the taxpayer had not renounced his executorship, so that it was unnecessary to consider the taxpayer’s further submission that he acted merely as a trustee de son tort rather than an executor when he granted the mortgage to his daughter. However, Wong J nonetheless stated (at para. 28):

[I]f Mr. Mingle was a trustee de son tort (i.e. a person who is not appointed as trustee but whose course of conduct suggests that he be treated as one), I believe that for income tax purposes, he would have still fallen within the definition of “legal representative” which encompasses “any other like person ... dealing in a representative or fiduciary capacity with the property.”

Furthermore, she indicated that s. 34 of the Ontario Estates Act (respecting renunciation of the probate of a will appointing an individual as executor) was “of limited assistance” (para. 28), as the will had not been probated.