Today’s blog was written by Latoya Brown, Associate, at Fasken LLP

When it comes to estate planning involving trusts, selecting the right trustee is one of the most crucial decisions. The recent case, Jones v. Jones, 2025 ONSC 695 serves as a poignant reminder of the complexities and potential pitfalls involved in trust administration. This case underscores the importance of choosing a trustee who is not only knowledgeable and capable of managing the trust in accordance with its terms but one who is also trustworthy. This post will explore the Jones v. Jones case and then delve into the essential qualities for selecting a trustee.

The case revolves around the Morris Guy Jones Family Trust 2012 (the “Trust”), established by the late Morris Guy Jones, a lawyer and mediator. The Trust was intended to hold US situs property, purchased for $850,000 USD and registered in the name of the Trust, for the benefit of Morris’s spouse, Vaska Micevski Jones, his son Brendan Jones from an earlier marriage, and Brendan’s children. Vaska was appointed as the initial trustee, with Brendan as the successor. The Trust was created to manage the property in a tax-efficient manner. After Morris’s death in 2021, Vaska, acting as trustee, sold the property and transferred the proceeds to a joint investment account she held with Morris, later claiming it as her property by right of survivorship.

Brendan, the applicant, sought to remove Vaska as trustee, alleging that she improperly distributed trust assets and breached her fiduciary duties. Vaska claimed that the Trust was a sham created solely for tax planning and lacked the intent to establish a trust, thus it should be considered void. The court examined whether the Trust was valid and whether Vaska had breached the terms of the Trust and her fiduciary duties.

The court found that the Trust was not a sham as the three requisite certainties were present to create a valid trust:

1. 1. Certainty of intention: there was clear evidence of Morris’s intention to create a valid trust; he obtained legal advice and email exchanges between him and his solicitors confirmed his intention;
   2. Certainty of subject matter: there was certainty of subject matter as the Trust deed stated that the settlor would deliver certain assets to the trustee. Email exchanges with Morris and his solicitor’s of which Vaska was copied on, made it clear that the Trust was “designed to hold” the property. Funds to purchase the property were transferred to the Trust’s bank account and used for its purchase; and
   3. Certainty of objects: the beneficiaries were specified.

The court also determined that Vaska breached the terms of the Trust by distributing Trust assets to herself and the deceased. The trust terms stipulated that trustees were not permitted to make distributions to the deceased. Additionally, her transfer to herself was not for “health, support in reasonable comfort, maintenance or education” as stipulated in the Trust. The court also found that Vaska’s conduct in transferring Trust assets and attempting to hide funds constituted a breach of her fiduciary duty. Consequently, Vaska was removed as trustee, Brendan was appointed as the new trustee, and Vaska was directed to restore all Trust assets and disgorge any profits resulting from improper distribution of the Trust property. The court also mandated that Vaska pass the accounts from inception to present.

The Jones v. Jones case highlights the importance of carefully selecting the right trustee. This decision requires thoughtful consideration as trustees must understand the trust’s purpose, structure, roles, and responsibilities. Trustees must also manage and invest trust property, administer the trust, and make distributions. Thus, the selection process should focus on personal acumen and qualities and avoid common pitfalls such as appointing trustees based on birth order or avoiding hurt feelings. A structured approach to evaluating and selecting the best trustee is essential for the trust’s long-term success.

Key qualities to consider when selecting a trustee include integrity, financial acumen, and understanding of fiduciary duties. Trustees must manage the trust’s assets prudently and impartially, possess good communication skills, and build trust with beneficiaries. Understanding the family’s values and long-term goals is beneficial. Trustees should be patient, have good judgment, be well-organized, and pay attention to details. Their availability and willingness to devote time to their duties are also important.

An often overlooked part of the selection process is the relationship between trustees and beneficiaries which can impact the trust’s effectiveness. A good trustee should view their role as a human relationship by engaging proactively with beneficiaries to understand their needs and aspirations. Trustees should also be proactive in making distributions by asking beneficiaries about their goals and working together to achieve them. Furthermore, understanding the trust creator’s intent is vital to ensure it enhances the beneficiaries’ lives. Finally, trustees must prioritize family interests above their own and build strong, positive relationships that support the trust’s long-term goals.

Choosing the right trustee is not just a legal formality; it is a crucial decision that can significantly impact the administration and success of a trust. As  Jones v. Jones illustrates, the consequences of a poor choice can be far-reaching and contentious. Therefore, careful consideration are essential in making this important decision.