Can an executor be removed without a court order?

 In estate, wills and estate

In Ontario, an estate trustee (or “executor”) can be removed for a number of reasons, but if the executor has already begun to administer the estate, a court order is required.

 
Application
Any person interested in an estate, including an executor or someone with a “financial interest” in the estate, may attempt to remove the estate’s executor by making an application to the Ontario Superior Court of Justice. The Court has the authority to remove an executor under section 37 of the Trustees Act[1] or under its inherent equitable jurisdiction.[2] The Court can use its jurisdiction as long as the executor has taken steps to administer the estate even if a Certificate of Appointment of Estate Trustee (letters probate) has not been granted.[3]

 
Main Principle
An Ontario court will only remove an estate trustee if the applicant shows that it clearly necessary to do so[4] on a balance of probabilities[5] because the executor is unlikely to administer the estate properly in accordance with the trustee’s fiduciary duties with due regard to the welfare of the beneficiaries.[6]  The main guide, however, is the welfare of the beneficiaries.

 
Examples
Without limitation, an estate trustee can be removed for some of the following reasons:

Incapacity: Obviously, an estate trustee who is incapable of acting may be removed, as his or her own incapacity could hurt the welfare of the beneficiaries or endanger trust property.

Misconduct: An estate trustee will not automatically be removed for his or her misconduct[7] unless it includes an element of dishonesty, breach of fidelity, endangers the administration of the estate, or endangers the welfare of the beneficiaries. In any case, if the misconduct is likely to continue, the Court will likely remove the executor.[8]

Disagreement: An executor can be removed for disagreement or dissension.[9] If there is disagreement between or among estate trustees, the court is likely to remove one or more of them. An executor will not be removed simply for having a bona fide disagreement or for simply dissenting with the other executors. An executor is also less likely to be removed simply because of disagreement with beneficiaries[10] unless it would likely preclude the executor from treating the beneficiaries impartially.

Conflict of interest: A conflict of interest can ground a removal. The questions is whether it would be difficult for the trustee to act impartially.[11] As an example, an executor would have difficulty acting impartiality if he or she had a legal claim against the estate for dependant support. On the other hand, conflict of interest will likely be allowed if it is authorized by the will.[12] Many estate trustees are also beneficiaries of the estates they administer, putting them in a position where their powers may be exercised in favour of their own interests as beneficiaries. This is usually acceptable.

 
NOTES:
[1] Trustee Act, R.S.O. 1990, c. T.23 s. 37.
[2] See: St. Joseph’s Health Centre v. Dzwiekowski, [2007] O.J. No. 4641 (Ont. S.C.J.) at para 25. Evans v. Gonder (2010), 2010 CarswellOnt 1240 (Ont. C.A.).
[3] Carmichael v. Carmichael Estate (2000), 31 E.T.R. (2d) 33 (Ont. S.C.J) at para 32.
[4] Weil, Re, [1961] O.R. 888 at 889 (Ont. C.A.).
[5] St. Joseph’s Health Centre v. Dzwiekowski, supra, note 2 at para 37.
[6] Letterstedt v. Broers (1884), 9 App. Cas. 371; St. Joseph’s Health Centre v. Dzwiekowski, supra, note 2 at para 28.
[7] St. Joseph’s Health Centre v. Dzwiekowski, supra, note 2 at para 28.
[8] Ibid at para 29.
[9] Consiglio, Re (No. 1), [1973] 3 O.R. 326 (Ont. C.A.).
[10] Forster v. Davies (1861), 4 De G.F. & J. 133, 45 E.R. 1134 (Eng. Ch. Div.).
[11] Rose v. Rose, 2006 CarswellOnt 3776, 24 E.T.R. (3d) 217 (Ont. S.C.J.).
[12] Ballard Estate v. Ballard Estate (1991), 41 E.T.R. 113 (Ont. C.A.).

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