Not everyone is well suited or willing to act as an estate trustee – the job can be onerous and family dynamics can make it especially challenging. As a result, the person named as an estate trustee in a will, or who has the first right to act as estate trustee under the Estates Act, RSO 1990, c E.21, does not always step into the role or continue in the role until the estate is wound up.
Oftentimes there are strong feelings about what language to use when an estate trustee steps back from the role. However, whether an estate trustee “renounces,” is “removed,” or is “passed over” depends on the circumstances. Each term has a specific legal meaning, such that they cannot be used interchangeably.
Renounce
Acting as an estate trustee is voluntary – no one can be forced to take on the job of administering an estate. Accordingly, any person named as an estate trustee in a will, or entitled to act as estate trustee under the Estates Act, can choose not to do so.
A person can voluntarily “renounce” her right to act as estate trustee prior to applying for a certificate of appointment of estate trustee. In that case, the person who has chosen not to step into the role of estate trustee will be asked to sign a “Renunciation” form. Not only does this form confirm that the person has voluntarily chosen not to act, this form is also necessary: without it, the next person in line entitled to apply for a certificate of appointment of estate trustee cannot do so.
Pass Over
Occasionally, the person who is first in line to act as estate trustee cannot be found or refuses to sign the necessary renunciation form. In that case, one of the beneficiaries or the person next in line will be forced to bring a court application to “pass over” the person who is first in line to act as estate trustee.
A court will only pass over an estate trustee: (i) before a certificate of appointment of estate trustee is issued; and (ii) where there is clear evidence that it is necessary and in the best interests of the beneficiaries to do so. Accordingly, the applicant will have to provide evidence to the court in support of this request.
A judgment passing over the person entitled to act as estate trustee takes the place of the renunciation form. In other words, once a judgment is issued passing over someone as estate trustee, the person next in line may move forward with a probate application.
Remove
A certificate of appointment of estate trustee is a type of court order. This means that, once an estate trustee has received a certificate of appointment of estate trustee, she must continue in that role until: (i) she completes the estate administration and winds up the estate; or (ii) she is removed by further court order.
An estate trustee may wish to resign from their role for any number of reasons. However, in order for the resignation to become effective, a judge will need to issue an order removing her from that role. Generally, where the current estate trustee wishes to be removed, the court will grant the request as long as suitable arrangements are in place to replace her, if necessary.
In other circumstances, the beneficiaries may seek to remove an estate trustee against her will. The court will be hesitant to remove an estate trustee who opposes the request to step down without clear evidence that it is necessary and in the best interests of the beneficiaries to do so (note that the court applies the same test to remove or pass over an estate trustee).
For a further discussion on the topic, the differences between removing an estate trustee and passing over someone who is entitled to act as estate trustee, and the test for doing so, was thoroughly laid out in Justice Sanfilippo’s March 14, 2024, decision in Sassano v Iozzo, 2024 ONSC 1517.
