Background

Robert Emanuel James died on April 8, 2023.  Mr. James signed a Will dated September 7, 2022, which appointed his friend, Eleanor Strachan-Weekes as his estate trustee. On the backsheet of the Will, where one would normally expect to see the name of the solicitor who drafted the Will, appeared the name William J.F. Bishop, “Consultant”. Mr. Bishop was also one the subscribing witnesses of the Will.

On April 10, 2023, two days after Mr. James died, Ms. Strachan-Weekes renounced her right to a certificate of appointment of estate trustee. On April 30, 2023, the four beneficiaries of the estate signed consents to Mr. Bishop’s appointment, with a fifth beneficiary consenting on May 2, 2023.

However, in 2012, a Law Society of Ontario disciplinary panel had found Mr. Bishop guilty of professional misconduct for having knowingly assisted his vendor/purchaser clients in obtaining mortgages under false presences in connection with 14 transactions. As a result, Mr. Bishop was permanently disbarred from the practice of law.

Notwithstanding the disbarment, the beneficiaries of the estate supported his appointment as estate trustee. The beneficiaries maintained that Mr. Bishop was a family friend, confidant and advisor of Mr. James for many years. The beneficiaries believed Mr. Bishop was a trusted and qualified person to act as executor, and had shown integrity and competence in his dealings with the beneficiaries and financial institutions.

Decision

At issue on the motion was whether the Court should exercise its inherent jurisdiction to reject Mr. Bishop’s application for a certificate of appointment of estate trustee with a Will.

The Court acknowledged that there was no authority holding that disbarment automatically disqualifies a former lawyer from acting as an estate trustee. However, the Court has the inherent jurisdiction to remove and appoint estate trustees, and to pass over executors in a Will. However, in practice, the Court is reluctant to interfere with a testator’s choice of executor as expressed in a Will. Moreover, past misconduct is not a basis for the Court to remove an executor unless there are grounds to find the executor will endanger the estate property in the future.

Lawyers who have lost their licence to practice law are prohibited from providing legal services, which includes the application of legal principles and legal judgment with regard to the circumstances or objectives of the person. Prohibited services include drafting or revising a testamentary document that relates to the estate of a person.

In the present case, the Court found that the appearance of Mr. Bishop’s name on the backsheet of the Will, his witnessing of the execution of the Will, the resignation of the named estate trustee a mere two days after Mr. James’ death, followed by the rapid consents of the beneficiaries, combined with their statement that Mr. Bishop “continued to advise Mr. James and the family members of Mr. James on important matters”, gave rise to questions about the nature and extent of Mr. James’ involvement and relationship with this family, and whether Mr. Bishop had engaged in the practice of law.

Ultimately, the Court weighed the wishes to the beneficiaries to have their trusted long-time friend, confidant and advisor act as estate trustee, against the Court’s responsibility to promote confidence in the administration of justice and uphold the rule of law. While there was no evidence that Mr. Bishop’s future conduct would damage the interests of the estate, the circumstances raised concerns regarding his involvement with Mr. James and his estate, and pointed to the unauthorized practice of law, which Mr. Bishop filed no evidence to rebut. This weighed heavily against the granting of Mr. Bishop’s application, notwithstanding the wishes of the beneficiaries. Mr. Bishop’s application for a certificate of appointment of estate trustee was therefore dismissed.

Take Away

While a disbarred lawyer is not disqualified from acting as an estate trustee, the application for a certificate of appointment should include evidence confirming the former lawyer’s intention to administer the estate in accordance with the requisite duties and standards, and that the former lawyer does not intend to engage in the practice of law.