Can you apply for the removal of the estate trustee?
Section 37(3) of the Trustee Act provides the court with legislative authority to grant an order removing an estate trustee upon the application of:
- -any executor or administrator desiring to be relieved from the duties of the office, or
- -any executor or administrator complaining of the conduct of a co-executor or co-administrator, or
- -any person interested in the estate of the deceased.
When will a court remove an estate trustee?
Courts have developed the following principles that guide the exercise of their discretion to remove estate trustees [Radford v Wilkins, 2008 CanLII 45548 at paras 97 – 108 (ON SC)] :
1. The court will not lightly interfere with the testator’s (deceased’s) choice of estate trustee,
2. Clear evidence of necessity is required,
3. The court’s main consideration is the welfare of the beneficiaries, and
4. The estate trustees acts or omissions must be of such a nature as to endanger the administration of the estate.
Every mistake or omission by a trustee will certainly not warrant removal. Rather, removal is warranted only where the acts or omissions are such so as to endanger the trust property, or where the estate trustee displays a lack of honesty, reasonable fidelity or capacity to execute their duties.
Courts have removed estate trustees where:
- -there was misconduct, improper behavior or conduct that endangered the estate;
- -there was dissension with the beneficiaries;
- -there were undue delays in administering the estate;
- -compensation was taken prematurely; and
- -a trustee was unable to agree with a co-trustee.
There are few certain cases for removal, and each case will turn on its own facts. The welfare of the beneficiaries is the key consideration in an application for removal.
