There is a tension between the two sometimes conflicting goals of protecting testamentary freedom and permitting sui juris beneficiaries to enjoy their property without undue restrictions. Testamentary freedom is a hallmark of the common law in democratic societies that support the rule of law and property rights generally. Accordingly, testators are, for the most part, legally entitled to dispose of assets as he or she wishes.
Anecdotally, it appears that a rising number of court cases involve beneficiaries or co-trustees trying to remove a “rogue” executor.
It is reasonably easy to imagine many of the possible reasons for which a trustee or executor may be removed from their position by the Court. Perhaps he appropriated trust property for his own benefit, delayed in taking the steps necessary to administer the trust or estate, failed to account for trust property, or was otherwise clearly incompetent in the role.
The friction between Peter and Michael was long standing and intense. While the reported case does not specifically say so it appears that the arguments over their mother’s investments was just another platform of expression for their mutual animus. While Peter may have been the executor of his grandfather’s estate Michael was his mother’s litigation guardian.
Will a court remove an executor where there is disagreement, friction, or hostility between the trustees and the beneficiaries? Is friction in of itself enough to warrant removal? One of the cases that highlights the Courts’ efforts to grapple with these questions is Rose v. Rose.
If one reviews the secondary authorities one of the grounds listed warranting the removal of an executor is “substantial breach of trust”.
In the Finlayson Estate case the deceased owned certain shares in joint tenancy with her niece. The niece sought an order removing deceased’s husband as executor. She claimed that the 99 year old husband was not competent to administer the estate’ because of his age and infirmities at time of hearing.
A conflict of interest does not automatically result in the removal of an executor. A review of the case law and secondary authorities paints a coherent picture and legal baseline. For an Ontario judge to remove an executor on account of a conflict of interest s/he must be convinced that the removal is in the best interests of the estate.
In Kajaks Estate, the deceased named his stepson as executor. There were no distributions for eight years. At that point, pursuant to a court application, the executor was ordered to make interim distributions of $100,000 to each of the applicants. While the residuary beneficiary received an interim distribution, the applicants did not. The applicants went back to court and sought to find the executor in contempt of the previous order and to remove him for delay.
When a will challenger has no evidence to support the challenge, what strategy can lawyers take to inexpensively defeat the will challenge, vacate the notice of objection and move forward with probate?
In the recent case of Lee v. Ponte, the Court of Appeal for Ontario considered a novel argument about limitation periods. Others have written about the decision, but what piqued our interest was the Court of Appeal’s comment at the end of its short decision.
Choosing an executor is a critical decision. Before choosing who should manage your estate when you die the most important task is to ask if the person contemplated is up to the job. The ideal executor will follow your wishes, know how to administer the estate, be honest and fair, and be prepared to do the job in a timely and proper fashion.