Many people assume that only executors and estate trustees can be held responsible for improper estate transactions.
That assumption can be dangerous.
The Ontario Superior Court's decision in Humphreys-Saude v. Pavao, 2022 ONSC 4982 demonstrates that a person who is not an executor, trustee, or beneficiary may still face personal liability if they knowingly assist someone in misusing estate assets.
The case serves as an important warning for family members who become involved in estate administration without understanding the legal responsibilities that can arise.
The Facts
The case involved the estate of Roy Saude, who died in 2019.
His daughter was the sole beneficiary of the estate, while his mother assumed responsibility for administering the estate after his death. Before the estate was properly administered, Roy's bank account continued to be accessed using his debit card.
Over a period of weeks, thousands of dollars were withdrawn from the account through ATM transactions and numerous retail purchases were made using the deceased's debit card.
The beneficiary eventually discovered the transactions and brought a court application seeking repayment of estate funds.
The claim was not limited to the person administering the estate. It also extended to another family member who had assisted with banking and shopping activities.
A Deceased Person's Debit Card Should Not Be Used
One of the court's strongest findings was that continuing to use a deceased person's debit card after death is improper.
Many people mistakenly assume that using a deceased family member's bank card for funeral expenses or family-related costs is acceptable.
In reality, once a person dies, their assets become part of their estate and must be dealt with through the proper estate administration process.
Even when expenses appear reasonable, the proper procedure is generally to:
- Notify the financial institution;
- Open an estate account if necessary;
- Obtain authority to administer the estate; and
- Maintain appropriate records of expenditures.
Simply continuing to use the deceased's bank card can expose individuals to significant legal risk.
You Do Not Need to Be the Executor to Be Sued
Perhaps the most important lesson from the case is that personal liability is not limited to executors.
The family member who assisted with transactions argued that she was merely helping an elderly parent and never intended to act as an estate trustee.
The court accepted that she had not formally assumed the role of trustee.
However, that did not end the analysis.
The court found that someone who knowingly assists another person in a breach of trust may still be personally liable for losses suffered by the estate.
What Is Knowing Assistance?
The doctrine of knowing assistance allows courts to impose liability on individuals who participate in wrongful conduct involving trust or estate assets.
In simple terms, a person may be liable if they:
- Know that fiduciary obligations exist;
- Know about a breach of those obligations, or are wilfully blind to it; and
- Assist in the wrongful conduct.
This doctrine is particularly important in estate disputes because family members often work together when dealing with a deceased person's affairs.
Good intentions do not always prevent liability.
Willful Blindness Can Be Enough
One of the most significant aspects of the decision is the court's discussion of wilful blindness.
The law does not allow people to avoid responsibility by deliberately avoiding obvious questions.
When suspicious circumstances exist, courts may expect individuals to make reasonable inquiries.
In this case, the court concluded that the surrounding circumstances should have raised concerns, including:
- Repeated cash withdrawals;
- Continued use of a deceased person's debit card;
- A lack of documentation;
- Large amounts of unaccounted-for cash; and
- Explanations that did not withstand scrutiny.
Simply accepting questionable explanations without investigation may not provide a defence.
Driving Someone to the Bank Can Create Problems
Many people would be surprised to learn how little participation may be required to attract liability.
The court found it significant that the family member:
- Drove the deceased's mother to banks;
- Drove her to stores;
- Assisted with transactions;
- Used her own Costco membership during purchases; and
- Helped facilitate access to estate funds.
The court concluded that these actions constituted assistance in the improper use of estate assets.
The decision serves as a reminder that participation does not need to be extensive to create legal consequences.
Poor Record-Keeping Creates Significant Risks
Another recurring theme in the decision was the absence of documentation.
Receipts were missing.
Claims regarding debts could not be substantiated.
Cash withdrawals could not be explained.
Property belonging to the deceased could not be properly accounted for.
In estate litigation, courts frequently place significant weight on contemporaneous records.
Without them, individuals may find it very difficult to justify transactions after the fact.
Distinguishing Legitimate Expenses From Improper Transactions
Importantly, the court recognized that some expenses were legitimate estate expenses.
Funeral-related costs and other properly documented expenses were treated differently from unexplained withdrawals and personal expenditures.
This distinction highlights the importance of keeping records and maintaining clear separation between:
- Estate expenses;
- Family expenses;
- Personal expenses; and
- Beneficiary distributions.
When funds become commingled, disputes often follow.
Family Assistance Can Quickly Become Estate Administration
Many family members believe they are simply helping.
They may:
- Drive an elderly parent to appointments;
- Help complete paperwork;
- Speak with banks;
- Arrange funeral services; or
- Assist with finances.
While those activities are often performed with good intentions, they can create legal exposure if estate assets are being handled improperly.
Before becoming involved, individuals should understand whether they are merely providing assistance or effectively participating in estate administration.
Practical Lessons for Families
Stop Using Bank Cards After Death
Do not continue using a deceased person's debit or credit cards.
Notify Financial Institutions Promptly
Early communication with banks can prevent future disputes.
Keep Detailed Records
Every expense should be documented and supported by receipts.
Separate Estate Funds From Personal Funds
Estate assets should never be treated as family funds.
Seek Legal Advice Early
Questions about estate administration are easier to resolve before problems arise.
The Bottom Line
Humphreys-Saude v. Pavao, 2022 ONSC 4982 is an important reminder that liability for estate misconduct can extend beyond the executor. Family members who assist with financial transactions, facilitate access to estate funds, or ignore obvious warning signs may find themselves personally responsible for losses suffered by the estate.
The case underscores the importance of transparency, documentation, and proper estate administration from the moment a person dies.
How MerGen Law Can Help
At MerGen Law, we assist clients throughout Alberta with estate administration, breach of fiduciary duty claims, executor disputes, estate accounting applications, recovery of estate assets, trust disputes, and estate litigation. Whether you are concerned about how estate funds have been used or are facing allegations relating to estate administration, our team can help protect your interests.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about elder abuse should seek professional advice tailored to their specific circumstances.