Estate Planning

Executor Removed - No Replacement Appointed

By Hull & Hull LLP

In a novel decision of the Ontario Superior Court of Justice, the court removed Estate Trustees who no longer wished to act in that role. No one else consented to act. What is novel is that no replacement Estate Trustee was appointed.

In the 2009 case of Evans v. Gonder, (incorrectly cited as 2000 CanLII 27170), the deceased named her sister and brother in law as Estate Trustees. A Certificate of Appointment was obtained by them. However, the Estate Trustees were elderly, and in poor health. They lived far away from the estate, and said that they could not afford to continue to defend litigation that was brought against the estate by one of the heirs. They had already spent $40,000 of their own money in defending the litigation.

The estate was said to be small, consisting of a modest house in Hamilton. By her Will, the deceased left a life interest in the house to her mother. The mother was still alive, but not able to live in the house: the house was vacant. 1/3 of the residue was left to a brother (who brought an action against the Estate, claiming that the house was held by the deceased for his benefit). It is not clear who the other beneficiaries were.

The brother opposed the motion for an Order removing the Estate Trustees. He argued that the legislation did not allow the court to remove Estate Trustees unless another person has consented to replace them. He made no suggestion as to how the Estate Trustees could be relieved of their duty, and submitted that 'they are stuck with it'.

The court disagreed. It cited 1867 case law which found that 'if there was no means by which a trustee could denude himself of that character, it would operate as a great discouragement to mankind to undertake so arduous a task'.   It also held that a trustee is not bound to show that someone else is ready to act. The court may, however, in an appropriate case, keep the Estate Trustee on, 'taking care that the trustee shall not suffer thereby'.

In the present case, the court discharged the Estate Trustees. In the circumstances, it did not feel obliged to keep them before the court. The court ruled that the trustees were not in a position to do anything meaningful. They could not sell the house, due to the litigation, and could not settle the litigation, due to a tax lien that was registered against the property. The brother's litigation was not prejudiced, as he could move to appoint a litigation administrator.

Thanks for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on September 14, 2009 (boomark / email).