Estates & Wills & Trusts

Decision reinforces difficulty removing estate trustees

A recent Ontario decision that deals with the issue of conflict of interest among estate trustees confirms the uphill battle that faces beneficiaries when they want to remove an appointed trustee, says Toronto trust and estate litigator Felice Kirsh.

Hawkins v. Hawkins Estate saw two siblings seek to remove two other family members as estate trustees under the will of their father and to appoint a litigation administrator on the basis that the trustees were in a conflict of interest. According to the decision, the parties had a history of “longstanding personal animosity.”

“Complaints by beneficiaries about estate trustees are quite common. It is common for beneficiaries to point fingers at the estate trustee complaining about anything and everything. Motions to remove estate trustees are often contemplated and sometimes proceeded with but as this case reinforces, such relief is difficult to obtain,” explains Kirsh, a partner at Schnurr Kirsh Schnurr Oelbaum Tator LLP.

In this case, Master Calum MacLeod ruled that the relief sought was too extreme and did not grant the motion to remove the trustees, noting that:

“In short it is the duty of the court to ensure the purpose of the trust is carried out and the testator’s choice of trustees should not be lightly disturbed. Removal is essentially a last resort in cases where it can be shown that continuation in office will inevitably impede proper administration”

Ultimately, this decision provides a useful guideline in determining if a motion for removal will be successful, says Kirsh. The decision notes that “the evidence must be clear that removal is justified and there is no other course to follow” and “the evidence must demonstrate that the antipathy towards the beneficiary is such that it will prevent the proper administration of the estate.

“As the court says, the decision of the testator to appoint a particular estate trustee will not be interfered with lightly. If it were otherwise, a testator would not have confidence in his appointment of a particular estate trustee,” says Kirsh.

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