November 12, 2013

The recent endorsement of Justice Greer in McColl v. McColl illustrates the broad authority of the Court to appoint an Estate Trustee During Litigation (ETDL), and where warranted, to dispense with the requirement that the ETDL post a bond.

The deceased was survived by his second wife, ex-wife and son from his first marriage.  At the time of his death, the deceased had several businesses.  The evidence suggested that he had significant assets – possibly more than $4.5 million.

The deceased’s will left nothing for his son, who has autism and Tourette’s Syndrome.  Instead, the deceased left a specific bequest to his own mother and the balance of his estate to his second wife.  The first wife brought a will challenge and a dependant’s support application on behalf of herself and on behalf of her minor son.

The second wife was named as the estate trustee in the deceased’s will.   An Order Giving Directions had directed the second wife in her capacity as estate trustee to disclose information to the first wife regarding the estate assets, the businesses, medical records, and solicitors’ files.  However, the estate trustee failed to comply with the order, with the result that the first wife brought an urgent motion to appoint an ETDL.  In her motion to appoint an ETDL, the first wife was supported by the deceased’s mother.

Justice Greer agreed with the first wife that “a decision to refuse the appointment [of an ETDL] should only be exercised in the clearest of cases” and cited with approval the following summary of when a court will appoint an ETDL:

Generally, the Court’s discretion will be exercised in favour of the appointment of an Estate Trustee during Litigation where assets are required to be held, preserved or otherwise dealt with, and debts are to be paid. This will be the case in the vast majority of estates.  However, in some simple estates, where the assets are all in liquid form, such as T-Bills or GICs and little else is required to administer the estate, a Court may decide that an Estate Trustee During Litigation is not necessary.[i]

Thanks for reading,

[i] Estate Litigation, B. Schnurr, 2nd ed.,(Thomson Reuters, looseleaf), c. 24.2