An application to remove an estate trustee is often brought when there is significant acrimony in the administration of an estate stemming from the actions, perceived or real, of the trustee. However, if the named trustee is willing to give up the position on consent, simply substituting a different trustee can often reduce tensions and avoid costly litigation. Renunciation is “[t]he formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right”.1 The form for renunciation (For 74G) is even included in the application for a certificate of appointment of estate trustee, and must be signed by every living person who is named in the will or codicil as an estate trustee and who has not joined in the application and is entitled to do so.2 So long as a party has not intermeddled with the estate, renunciation is available to them.3
People who are named as estate trustees in a deceased’s will may renounce their appointed position for all types of reasons. Sometimes, they just do not want to take on the role. Other times, renunciations may be part of a settlement of an estate dispute. Beneficiaries who are at odds with estate trustees will obviously be keen to have that person excluded from the administration of the estate. For instance, a beneficiary may agree to resolve claims to an estate in exchange for a named estate trustee executing a renunciation.
But the seeds of an estate dispute often precede the passing of the testator. While the rights and obligations of the beneficiaries and estate trustees will only become manifest upon the testator’s death, a future beneficiary at odds with a future estate trustee may still want that person excluded from the administration of the future estate. Say, for example, a brother commences litigation to remove his sister as attorney for property and personal care for their elderly mother. The sister in this example also happens to be the named estate trustee in the mother’s will which names the brother and sister as beneficiaries. When the parties move to settle their dispute over the mother’s capacity and powers of attorney, the brother may naturally want to avoid a similar dispute over their mother’s estate. He therefore may want to insist that the sister renounce her position as estate trustee over the mother’s future estate as part of the settlement.
The question this article will address is whether there is an enforceable way to renounce one’s position as estate trustee prior to its crystallization on the death of the testator?
As will be discussed below, it appears that the traditional route – using the Rules of Civil Procedure and its associated forms – is not an option in this scenario. The death of the deceased is specifically referenced in the renunciation form (74G), and the form is part of the probate process which obviously cannot be conducted prior to the deceased’s passing. Further, a traditional renunciation may not be sufficiently enforceable or irrevocable. There are avenues for a named executor who renounces the role to retract or withdraw such renunciation.4
Arguably, however, someone can renounce their right to administer an estate through contract.
While the authors have not found case law that directly addresses the scenario in issue, there is case law that may be applied by analogy. It is actually quite commonplace for spousal separation agreements to contain a clause in which both parties renounce their rights to inherit under and administer the other’s estate. However, whether such “renunciation” clauses are binding is not exactly a settled matter. The cases which substantively considered the administration element of those clauses are split as to whether it bound the former spouse after the testator’s death. Moreover, the cases that did consider it binding were also quick to create carve outs to circumvent the clause.5 The authors did not find any cases that cleanly prohibited someone from acting as estate trustee after they had renounced their right to administer the estate in contract before the deceased’s passing. It is also important to note that the law in Ontario recently changed so that separations which occur after the execution of the will of a former spouse will revoke any bequests to, or appointments of the other former spouse under the will.6 While this impacts the applicability of the below case law to separation agreement cases in Ontario going forward, the principles in these cases can arguably still be applied to fact scenarios which do not centre on the separations of spouses.
The separated spouse of the deceased in Ott, Re, 1972 CarswellOnt 136, applied for probate based on a will which named her as executrix. Under the former spouses’ separation agreement, the wife “renounced all rights to administration of her husband’s estate in the event of the husband predeceasing her and renounced and released the husband from any claims which she may hereafter have against his estate under The Devolution of Estates Act, R.S.O. 1970, c. 129, or The Dependants’ Relief Act, R.S.O. 1970, c. 126, or any other statutes.”7 The court found that this renunciation clause in the separation agreement barred the wife from acting as executor in an intestacy, but it did not apply here as there was a will.8 There is no clear rationale for why the court held that the language of the clause only applied in an intestacy, as the wording is quite broad. This is perhaps indicative of the courts’ preference to narrow the application of such clauses to the point of their inapplication.
Williams v. Breau et al, 2020 NBQB 85, ruled similarly on slightly different facts. The named beneficiaries of the will in this case were the deceased’s brother and his two sons that he had with his ex-wife. The ex-wife applied for probate after the deceased’s named executor renounced her appointment. The brother contested the ex-wife’s probate application based on a renunciation clause in the separation agreement, while the two adult sons supported her application.9
At paragraph 25 the court wrote:
Contextually and plainly viewed, I find that Ms. Williams renounced any right she would have to act regarding Daniel Breau’s estate, just as he did in relation to her estate. Indeed, the evidence of the “surrounding circumstances” shows that this was no amicable separation. And, it is reasonable to infer that neither wanted the other involved in the affairs of their lives thereafter, including acting through their children regarding the others’ estate. I make that last observation because even though the children were underage at the time of the making of the Separation Agreement the parents both renounced the right to act for each others’ estates “in favour of the children of the marriage”. And, even though the children remained underage at the time Daniel Breau later made his Will, and even though the “Release” provision under the Separation Agreement was made subject to any right given to each other in their respective Wills, he made no alternative provision to the appointment of his sister as executrix. (emphasis added)
But in the next paragraph, the court cut its holding off at the knees:
However, public policy (here the influence of parental and societal obligations to protect children) drives the Court to a narrower interpretation of an aspect of their Agreement; an exception of sorts. The parties did not provide for what would happen if one or both children were not of the age of majority at the time of the death of one parent and there was either no Will or a failed appointment of an executor/executrix under a Will, as in this case. As a result, the Court finds that for estate purposes the parties intended to waive the right to act personally or through or on behalf of their adult children, but the waiver was not to apply if a child was a minor at the time of a parent’s death.10 (emphasis added)
The reasoning for this carveout essentially shows how little deference courts have shown to these types of clauses, although it is certainly arguable that Ott and Williams should be limited to their fact situations. But based on how casually the courts disregarded what would otherwise be considered binding clauses in contracts, and the following two cases in which the courts were even less generous toward these clauses, it is clear that trying to enforce such clauses may be an uphill battle.
In Billing v. Rideout, 1993 CarswellNfld 71, the court first considered the separated spouse’s right to inherit under her former spouse’s will, which then informed the court’s ruling on her right to administer the estate. First, it was held that she was entitled to inherit under her former spouse’s 1988 will, which bequeathed her the entirety of the deceased’s estate, despite a renunciation clause of inheritance and administration rights contained in their 1990 separation agreement. The court’s justification was that (i) the release of inheritance rights were with regard to an intestacy or under statute, not under a will; and (ii) the deceased failing to revoke his will affirmed his choice to confer a benefit on the spouse.11 Regarding the renunciation of the right to administer the estate of the former spouse, the court also overrode the agreed to clause:
In addition, and because the Applicant is the sole beneficiary under the terms of the Will, I direct that she be the proper person to apply for probate, notwithstanding her waiver of that right included in paragraph 12 of the separation agreement. I make this order invoking the discretion given to me by Section 117 of the Judicature Act.12
Billing is distinguishable for the purposes of this article because the court explicitly predicated its holding on the applicant being the sole beneficiary of the estate, and using section 117 (now s. 119) of the Judicature Act, which reads as follows:
Discretion as to grant
119. Under special circumstances, where it appears to the court to be just or expedient, letters of probate or administration may be granted to a person other than the person entitled ordinarily or by law to the grant of probate or administration.
Although Billing did grant probate in spite of a renunciation clause, it does not go as far as saying that such clauses are not binding. The ruling seems to reflect the judge’s interest in efficiently administering a simple estate with one beneficiary. The court’s decision may have been different in a contested probate application.
Hayward Estate (Re), 2010 NSSC 6, cannot be so easily distinguished. Much like the cases above, the testator did not change his will following his divorce. The will appointed his then wife as sole executor and beneficiary of his estate and if she predeceased him, then their son would be beneficiary. Their separation agreement included a section in which the parties released rights in one another’s estates:
17.01 The Husband and Wife each hereby release all rights which he or she might have under the laws of any jurisdiction to any share in the estate of the other or to the administration of the estate of the other, except as otherwise provided in this Agreement.
The son applied for and was granted administration of the estate by virtue of his dad’s will and the divorce documents. The former wife then commenced an application to remove her son and have herself appointed as sole executor and declared sole beneficiary of her former husband’s estate on the basis of the same will.
Employing a circular logic, the court first found that the son did not have standing to contest the will by virtue of the separation agreement because he did not have privity of contract.13 Further, as the only living party to the separation agreement with standing to challenge the will, the wife was unlikely to interfere with her intent and interest under the will. Based on that, the court held that the alleged waivers or renunciation did not contractually bind the former wife.14 The court further held that the former wife could not be estopped from acting as administrator and claiming under the will, as the separation agreement does not refer to a Will and I find that it cannot be read as a promise or assurance that she would forgo any right to receive under the Will or to administer the estate should the testator make such an indication in the Will.15
The former wife was therefore declared sole beneficiary and allowed to administer the estate.
Shifting back to the settlement agreement scenario with the brother (future beneficiary) and the sister (future beneficiary/estate trustee) – not one of the above cases stands for the principle that a clause in a settlement agreement that the sister renounces her right to administer the mom’s future estate would not be binding. Also, there are a number of distinctions which may either prove helpful or detrimental to the viability of such a clause. First, the agreement to renounce the right to administer the estate in this scenario would be between the potential estate trustee and a beneficiary, rather than between the estate trustee and the testator. On the one hand, this distinction could be used to argue that the cases which superficially upheld the renunciation, like Williams and Ott, would not apply to the fact scenario and that only testators can bind potential trustees from acting. Under this line of argument, the testator actually turning their mind to negating the executorship of their former spouse would fortify the clause in a way that could not be done with an agreement between two individuals who are not the testator. While this argument may have some merit, the case law never addresses this idea as a consideration.
The fact that the agreement/contract involves the parties to the future dispute could, on the other hand, be used to distinguish the scenario in issue from Hayward, which refused to bind the former spouse to their renunciation largely based on the lack of privity of contract between the former spouse and the beneficiary attempting to enforce the agreement.16 In the scenario in issue, the beneficiary brother would have standing as a party to the settlement agreement to enforce its terms. This scenario also has the helpful distinction of there being no other legal document executed by the brother which contradicts the intention of the renunciation clause. In much of the case law, the court is forced to grapple with a will executed by one of the parties which directly contradicts the renunciation clause by appointing the very party who renounced their rights under the estate as the estate’s executor and beneficiary.17 The renunciation in the scenario in issue could not be attacked in this manner.
Therefore, there is a principally sound argument based on the case law included in this article that a renunciation by an appointed estate trustee prior to the death of the deceased could be binding following the deceased’s passing. The problem is that the same case law demonstrates the courts’ willingness to disregard these clauses if the circumstances warrant, irrespective of their binding nature. One can certainly word the clause more comprehensively to better defend against the narrow readings favoured by the case law. But whether this will provide enough protection against a clear preference by the courts to read down these clauses is unclear. Either way, if the brother beneficiary were to insist on the inclusion of such a clause in his settlement agreement with his sister, the clause would be strengthened by the following:
- Clear wording which encompasses all circumstances, including administering the estate under the will, under an intestacy or if the appointed executors in the will are all unable to take up their appointment;
- Unlike in Billing, the sister would not be the sole beneficiary of the estate, so leaving her as estate trustee would not be more efficient;
- Unlike in Hayward, there is privity of contract between the brother and the sister as they are parties to the settlement agreement; and
- Unlike in Ott and Billing, the intentions of the parties to the agreement would not be disputed by the will of the testator.
- Chambers Estate v. Chambers, 2013 ONCA 511 at para 66 ↵
- Rule 74.04 (1)(e) of the Rules of Civil Procedure ↵
- Chambers Estate v. Chambers, 2013 ONCA 511 at para 65 ↵
- MacIsaac v. MacDonald, 1983 CanLII 2835 (NS CA) at para 25 ↵
- Ott, Re, 1972 CarswellOnt 136 at para 34; Williams v. Breau et al, 2020 NBQB 85 at para 26 ↵
- Section 17(3) of the Succession Law Reform Act ↵
- at para 13 ↵
- at para 34 ↵
- at para 5 ↵
- at para 26 ↵
- at para 5 ↵
- at para 5 ↵
- at para 48-50 ↵
- at para 48-50 ↵
- at para 56 ↵
- Hayward Estate (Re), 2010 NSSC 6 at paras 48-50 ↵
- Ott, Re, 1972 CarswellOnt 136; Billing v. Rideout, 1993 CarswellNfld 71 ↵