All About Estates

Removing an Estate Trustee: More Than a Feeling

In Viertelhausen v Viertelhausen, the court dismissed an application to remove the estate trustee due to lack of evidence of a true conflict of interest.

The deceased, Bote, died without a will. His brother, Bill, obtained a certificate of appointment of estate trustee without a will. The applicant, Teresa (a niece of both Bill and Bote) who was also a beneficiary of Bote’s estate, commenced an application to remove Bill as estate trustee, shortly after the certificate was issued.  Teresa also obtained an order (without notice to Bill) to request that he return his certificate of appointment to the court. Teresa alleged that Bill did not serve her with a copy of the probate application.

Teresa sought an order replacing Bill as estate trustee, as well as an order for Bill to pass the accounts of the estate.  She maintained that Bill could not act as estate trustee because he was in a conflict of interest, which prevented him from acting impartially.

Bill agreed to pass his accounts, but maintained there was no conflict of interest that prevented from him acting as estate trustee.

Before Bote’s death, Bill had been appointed as Bote’s guardian for property and personal care. Teresa moved to challenge this appointment, but the motion was vacated as Teresa did not file her motion materials on time, and because Bote died shortly after the scheduled hearing date.

Teresa alleged that Bill was in a conflict of interest because he had engaged in litigation with Bote . Additionally, there was animosity between her and Bill due to Bill’s administration of his mother’s estate.

The court rejected Teresa’s position that the previous litigation with Bote prevented Bill from acting impartially as estate trustee, because that litigation had already been resolved.  Bill had also obtained releases, including one from Teresa, with respect to his administration of his mother’s estate. Teresa had not provided any evidence of a conflict of interest.

The court noted that no other beneficiary had objected to Bill’s appointed as estate trustee of Bote’s estate.  Finally, the court noted that Teresa’s allegation of not being served with Bill’s probate application was false. Additionally, Justice Bell also struck out portions of Teresa’s affidavit for hearsay and double hearsay.

The court dismissed Teresa’s application and ordered the return of the certificate of appointment to Bill.

Readers of today’s blog might enjoy a previous blog by my colleague, Noah Haynes, on the related subject of why mere dislike of an estate trustee is not sufficient reason to grant the estate trustee’s removal.

Thanks for reading,

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com

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