All About Estates

To Remove or Not to Remove… That is the Question (with apologies to the bard)

Estates tell a million stories and the case of Ford v Mazman, 2019 ONSC 542, is just one of them. Mary died on April 3, 2017. Mary’s 2004 Will named her two nieces, Laura and Carleen, as sole beneficiaries. Mary appointed her close friend, Seta, as her estate trustee/executor.

Laura had travelled to Ontario from BC to spend two weeks with Mary while she was in hospital. Shortly after Laura returned to BC to start a new job, Mary died. For her part, while Mary was in hospital, Seta, who was Mary’s attorney (presumably for both property and personal care), remained in Florida. However, Seta was in close contact with Laura while she was in Ontario.

Mary knew she was gravely ill and asked Laura to help her get her personal affairs in order. Mary wanted to execute a new will and wanted to transfer her house to Laura.

After Mary died, everyone got along at first, but things soon went bad . Seta claimed that Laura had riffled through Mary’s “personal stuff” and taken things. Seta complained that Laura had stolen Mary’s jewelry, changed addresses for utility companies, taken Mary’s passport, and improperly accessed Mary’s safety deposit box. Seta also accused Laura of forcing Mary to sign a handwritten codicil transferring her house to Laura for little or no value.

Seta also tried to drive a wedge between Laura and Carleen by continually criticizing the actions of Laura. Eventually, Laura and Carleen had had enough and went to see their lawyer. Carleen’s words to her lawyer speak for themselves:

[Seta’s] treating us as if we are thiefs (sic) of the estate, and not as rightful heirs… Seta will not communicate with either Laura or my mother, so I took on that responsibility, but refuse to have her slander our family and cause undue stress… She took away the right to mourn… I also include the most recent email from her, although I have more … which are worse … with respect to her intention to sue my sister

Seta eventually served Laura and Carleen with her probate application, which failed to include the handwritten codicil. At the same time, Seta also advised that if boxes containing personal and family belongings were not removed from Mary’s home in short order, they would be disposed of. This despite repeated requests, ignored by Seta, for access to Mary’s home so Laura and Carleen could view its contents. Laura and Carleen had had enough and filed a notice of objection to Seta acting as estate trustee. Laura and Carleen moved to have Seta “passed over” as the estate trustee.

An estate trustee is “passed over” before a probate certificate is issued. An estate trustee is “removed” after a probate certificate has been issued. However, the court pointed out that the grounds for both are the same. Section 37(1) of the Trustee Act provides that the court may remove an executor and appoint someone else in their place.

However, and not surprisingly, the court is reluctantly to remove an estate trustee without cause and will exercise its discretion judiciously (pun intended). The oft-repeated phrase is that “the choice of estate trustee is not to be interfered with lightly.” The case law also refers to the need for the “clearest of evidence,” “no other course to follow,” “the court’s main guide should be the welfare of the beneficiaries,” “removal is not intended to punish past misconduct,” and “friction alone is not a reason for removal.”

After considering the evidence, the court exercised its discretion and passed over Seta as estate trustee. The court was not happy with the actions of Seta and had little faith that the estate would be properly administered. The Court held: “Refusing to honour the codicil was a shocking affront to her good friend’s dying wishes.” The Court further held that Seta’s claim that the codicil could not be probated because the witnesses to the codicil were not both present when Mary signed it “was wrong at law.” Relying on section 6 of the Succession Law Reform Act, the Court rightly noted that “[a] holograph will may be made entirely by a testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” Section 6 applies equally to codicils.

The Court noted that there was not mere fiction between Seta and the beneficiaries, but outright “hostility from Seta to the beneficiaries.” In addition, the court was not impressed that Seta tried to sow discord between the sisters and refused to ship Mary’s personal effects to Laura and Carleen, the two beneficiaries, at the estate’s expense. According to the Court, the welfare of the beneficiaries was paramount, which included avoiding the possibility of delay. In reaching its decision, the fact that the beneficiaries were aligned on the issues, including what assets belonged to the estate, was held as an important factor. In the end, the Court passed over Seta as estate trustee and appointed Laura and Carleen in her place. Seta was ordered to pass her accounts as estate trustee and had the added misfortune of facing a costs award.

Bottom line: As the Court noted, enormous trust is place in an estate trustee. An estate trustee must be neutral, fair, and dispassionate. The welfare of the beneficiaries is paramount and an estate trustee cannot let her feelings or views get in the way of the proper administration of the estate. An estate trustee will also be held to account, removed, or passed over if she strays too far from her duties and threatens, bullies, or outright ignores the beneficiaries. Being an estate trustee can be a thankless task; don’t make it worse by being difficult, disagreeable, and unpleasant.

Happy Litigating,

Justin

About Justin de Vries
Justin has been consistently named as one of the Best Lawyers in Canada/Trusts & Estates. He is an accomplished litigator who has appeared before all levels of the Ontario Court & the Federal Court of Canada. Justin's areas of expertise include: estate, trust, and capacity litigation, as well as probate applications and estate administration. He regularly speaks on estate, trust and capacity issues. Email: jdevries@devrieslitigation.com

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