Category: REMOVING AN EXECUTOR

The world of probate and estate administration can be a daunting one. Being named the executor of an estate means taking on significant responsibilities as well as inviting exposure to personal legal and financial liability. But what if someone is named an executor only to find out that they aren’t comfortable with the responsibilities or the possible liability they may be exposing themselves to?

In Ontario, the ability for courts to remove someone from the position of executor is found in Section 37 of the Trustee Act. The act states,

“The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.”

A recent decision from the Queen’s Bench for Saskatchewan looks at some of the ways a court may consider whether an executor should be removed at their request.

Estate has liabilities

The deceased passed away on November 12, 2016. His sister, “SF”, was appointed to be the executrix of his estate. She applied for letters probate the following autumn, on October 4, 2017, and the letters probate were granted two weeks later. The estate’s only asset was a piece of land valued at just $800. However, the estate also had liabilities, including a claim from the deceased’s former lawyer, “JG”, in the amount of $23,747.95.

The court was faced with two requests in light of this. The first was a request from SF to renounce probate. The second included a request by JG to ask SF for legal fees related to claims he is owed money by the estate.

Can the executrix renounce her role?

Following her receiving letters of probate, SF renounced herself as executrix of the estate. However, the court stated that renouncing the role is not something that can be done unilaterally. Instead, the court quoted a practice note which states, “…those asking for the removal of the trustee must convince the Court that his continuance in office would be likely to prevent the trust being properly executed.”

SF stated that transferring the property owned by the estate would cost money that the estate did not have, and would therefore impose a financial burden on herself. She said she could not afford to obtain the valuation of the land required to transfer the property. The court described her implicit argument as being that her continuance in the office could prevent the trust from being properly executed.

The deceased left behind two young children who were set to inherit the land. However, due to liabilities owed by the deceased as well as taxes owed against the property, the transfer of the property was a complicated matter.

The court told SF that she cannot unilaterally remove herself as executrix. Instead, she was directed to serve notice requesting to do so on the public trustee in view of the minor beneficiaries. She must also include an affidavit stating why she was seeking to remove herself from the role.

Can a creditor request an order directing the executrix to file her accounts and transfer land?

The second issue the court addressed was whether JG, who claimed he was owed more than $20,000 by the deceased could request an order directing SF to file the estate’s accounts and to transfers the state.

In this case, the court noted that those actions would be premature due to the uncertain nature of how the estate would be administered. If he wants to file a claim directly against SF, he would have to file an action rather than bringing up the matter while the issue at hand was being dealt with.

If you have been appointed an executor, the estates lawyers at Derfel Estate Law can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 416-847-3580 or contact us online to schedule a consultation.

The death of a family member can be a stressful time, and despite the common thought that it provides a time for family members to come together to support one another in a time of hardship, it can also be the case that the death of a loved one creates stress in these relationships. In a recent case heard by the Ontario Superior Court of Justice, the deceased’s niece was unsuccessful in attempting to remove her uncle (the deceased’s brother) as the estate trustee.

Poor health requires care

The deceased suffered a stroke in May, 2016. Due to medical reasons following the stroke, his health declined, leading to repeated hospitalizations. Ultimately, the deceased’s brother found him living on the streets in Toronto, and persuaded him to move back home. Four months later, the deceased was found to be incapable of managing his property and personal care.

The deceased suffered another medical crisis in March 2018 and was discharged into a long-term care facility. His brother, “BB” was appointed as the deceased’s guardian for property and personal care in December 2018.

Niece learns of appointment as guardian

It wasn’t until May 2019 that the deceased’s niece, “TV,” learned that the deceased had granted her powers of attorney for personal property and care in 2017, only after which BB was BB appointed guardian.

While TV and BB awaited a trial date to sort out this issue, the deceased passed away unexpectedly without a will. This occurred on September 20, 2019. BB was appointed estate trustee on December 4, 2019 after serving his notice of application on all beneficiaries in October.

Since the deceased passed away without a will, his estate was distributed with his brother (BB) getting one-third, another family member getting one-third, and TV and her sister splitting the remaining third.

Niece seeks to become estate trustee

The niece’s application was served with the hope that she could replace B as the trustee of the estate. She stated that BB had a conflict of interest since he had once engaged in prior litigation against the deceased. She stated there was “clear animosity” between BB and herself. She also alleged that BB had committed a fraud upon the court by obtaining the original certificate of appointment because she was not served with notice.

However, the court found that there was nothing on record to support her position. The court noted that she eventually admitted she was served with notice of BB’s intent to serve as trustee. The court wrote that her statement to the contrary was simply not true. All of the beneficiaries had been served, and her signature was on a registered mail envelope which was used to deliver notice.

Ultimately, the court found that none of the reasons TV brought to convince the court that her uncle should not be the executor of the estate were based in fact. As such, her application was dismissed.

If you are the friend or family member of a testator and are concerned about the appointed trustee or executor, contact Derfel Estate Law. Our Toronto estates lawyers help clients ensure that their interests or the interests of their loved ones are protected, and decisions are being made in the best interests of the estate. Call us at 416-847-3580 or contact us online to schedule a consultation

Disputes leading to estate litigation can be a financial and emotional burden on all involved, including the estate. That’s why the creation of an estate plan is so important. By organizing exactly what you want to have happen to your estate, you minimize the likelihood of disputes between family and friends. Then again, minimizing isn’t the same as eliminating. And even a carefully considered plan might be in place, disputes can still arise. This is a lesson recently illustrated in a decision from the Ontario Superior Court of Justice.

A wealthy estate

The deceased was a well-known Canadian figure skater who had spent a long time living in Mexico as a successful artist. He died while in Mexico on January 23, 2015. He had lived there for 23 years prior to his death. With no will in place, his estate was divided equally amongst his three siblings, referred to here as “B”, “C”, and “G”. B was also named trustee of the estate.

The deceased left behind a very valuable estate, including roughly 20,000 pieces of artwork. The total value of the estate, including artwork, chattels, bank accounts, and property was $6.25 million. There was still $429,958 in cash and $1.5 million in artwork left in the estate by the time the issue reached the courts.

A brief peace amongst heirs

Things seemed to be progressing positively in the early days of the estate’s management. Initially, the real estate and some of the artwork was sold, with the proceeds being split amongst the three heirs. They also divided other items from the estate. At some point, though, C and G began to lose confidence in B’s handling of the estate. The issue that led them to court was their concern about how the rest of the artwork was going to be sold.

B had been working with a number of art galleries throughout the country to sell their brother’s art. However, C and G believed that this devalued the art by flooding the market while also leaving a smaller piece of the proceeds to the estate since the galleries collected commissions on sales. C and G asked the court to divide the assets amongst the three heirs so that they could each decide how and when to sell their share. They also asked that an Estate Trustee During Litigation (ETDL) be appointed while the matter was before the courts.

It was B’s argument that she was acting in the best interest of the estate, as she was tasked to do, despite her siblings’ feelings to the contrary

A valid concern

The court recognized C and G’s concern as a valid one, writing,

“The administration of this Estate is neither simple nor straightforward and has become highly adversarial. (G and C) argue that (B’s) handling of the artwork is more focused on her vision of (the deceased’s) legacy than administering the Estate in the interests of the beneficiaries. In my view, their concern may be justified. (B) appears to have a personal interest in the outcome in conflict with the other beneficiaries.”

The court determined it was not appropriate to decide on whether or how the art was to be divided, but while they waited for a full trial, it was ordered that an ETDL be appointed.

At Derfel Estate Law our Toronto estates lawyers work tirelessly to achieve the best possible resolution to your will, estate, or trust matter. Call us at 416-847-3580 or contact us online to schedule a consultation.