All About Estates

No Second Chance to Replace Estate Trustee

Has the Court of Appeal written the final chapter in the long-running dispute between Erna and Hilda (two sisters who have been in litigation against each other since 2003)? I previously blogged about the Divisional Court’s ruling on an appeal of a contested passing of accounts regarding Erna’s role as attorney and estate trustee for her parents. Now, the Court of Appeal has dismissed Hilda’s latest appeal.

Hilda commenced an action alleging that Erna breached her fiduciary duty to her mother by keeping her in her home. On motion, the court struck out this action on the grounds that such a claim would properly be a claim of the estate and would thus need to be advanced by the estate trustee (in this case, Erna). Hilda then sought to replace Erna as estate trustee but was unsuccessful. Hilda appealed this decision, but was unsuccessful.

Hilda commenced an new proceeding to replace Erna as estate trustee with an independent estate trustee or estate trustee during litigation. On motion, the lower court dismissed this application on the grounds that the issue was identical to the issue previously decided. Once again, Hilda appealed.

The Court of Appeal agreed with the motion judge. Litigants are “only entitled to one bite at the cherry”, Hilda could not bring another court proceeding to pursue substantially the same relief – the removal of Erna as estate trustee.

The Court of Appeal rejected Hilda’s argument that the previous order was not final because of comments by the first motion judge regarding further proceedings on the same issue. The Court of Appeal held that had the first motion judge intended to allow Hilda to seek the same relief in some other manner, his Honour would have expressly made provision for that in his order instead of mere “obiter musings.”

Finally, the Court of Appeal determined that no discretion should be exercised to allow Hilda to proceed with her application. Ultimately, Hilda has no tenable claim. Erna assumed sole responsibility for the care of their mother. Hilda was absent. Hilda has been consistently defeated in court with respect to her various accusations about Erna. In addition, the allegations in support of removing Erna as estate trustee were only raised five years after their mother’s death.

The case demonstrates the importance of putting your best foot forward in litigation, as you will not be entitled to another kick at the can. This case may very well represent the end of the litigation between the sisters, although given the history, further proceedings may yet occur.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: