Removal of Executors in Toronto Ontario Canada
Charles B. Wagner
In Canada, attempts to remove an executor are common. These applications are often commenced by disgruntled beneficiaries or frustrated co-executors who believe that the person in charge of administering the estate is being unfair and or dishonest.
In Ontario, courts have the statutory authority to remove executors. Dissatisfied beneficiaries often go to court to compel the removal of the executors and force them to pass their accounts. If the application is successful, the executors are then forced to produce all the records relating their administration of the estate and a new executor is appointed as a replacement. The executors may or may not have done anything wrong. Nevertheless, the beneficiaries' resentment often stirs controversy and their frustration, mistrust and hostility can result in their asking the court to remove Estate Trustees.
Historically, in Ontario, Canada Courts needed to see evidence of misconduct in order to remove trustees. In Libman v. Feldberg, Mrs. Libman left some money to charities, but the bulk of the estate was left to her daughter. Mrs. Libman's will stated that her personal effects were to be given to her daughter, who in her absolute discretion, could decide how they should be divided between herself and Mrs. Libman's grandchildren. Her Estate Trustee ignored this provision of the will. He told Mrs. Libman's niece that she should take whatever she wanted. The daughter found that her mother's gold bracelet, diamond ring, candelabra and fur coat were gone. Enter the lawyers. Through their efforts, the Estate Trustee was removed, the missing personal effects were retrieved and $50,000 worth of bonds and valuable coins were recovered.
Was the Court's decision based on the hostility between the beneficiary and the Estate Trustee?
The Judge hearing the case relied on Re Davis, a decision of the Ontario Court of Appeal. In that case, Mrs. Davis appointed her friend to be the executrix (the person in charge of administering her estate). The three judges on the Court of Appeal found that " ... the present situation is not any more the fault of the executrix than it is of the beneficiaries.... regardless of what has brought about the present situation,....it is no longer possible for the executrix to exercise (her duties) in a completely impartial and objective manner". For the Court of Appeal, misconduct was not the issue. What mattered most was the presence of hostility and the inability of an Estate Trustee to be completely impartial and objective in the administration of the estate. In Libman v Feldberg, it was clear that the Court found Feldberg's administration of the estate wanting. The Court found that he did not carry out his duties "in a completely impartial and objective manner" which resulted in "... a degree of hostility and distrust is so strong, as to make it impossible for the beneficiary to accept Feldberg's actions..." Apparently, for Ontario Courts, removal of Estate Trustees may no longer only be limited to instances where a Trustee is guilty of misconduct. They key factor seems to be an ability to carry out his/her duties impartially and objectively.
Going to court to remove an Estate Trustee may be a very serious and expensive matter. Despite the temptation to jump to conclusions, it would be a mistake to treat this case review as substantive legal advice. For those considering this option, there is no substitute for hiring a competent solicitor whose own research, analysis and judgment should be canvassed prior to going to court.
ABOUT THE AUTHOR: Charles B. Wagner is an experienced estate litigator in Toronto. He has extensive experience in court proceedings dealing with executor removal and compelling them to pass their accounts. His office is a boutique litigation law firm whose primary focus is estate litigation.
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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.