Expectant beneficiary can't remove trustees in pre-death dispute

Toronto wills and estates lawyer Matthias Duensing says a recent case shows that sometimes beneficiaries are no longer waiting until the death of a testator before engaging in an estate dispute.

“Although not as common as your ‘typical’ estate dispute, there are increasing instances where expectant beneficiaries are engaging in pre-death power of attorney (POA) and estate trustee disputes,” says Duensing, principal of Duensing Law.

He points to Keller v. Wilson, 2015 ONSC 6962 (CanLII), where Ross Alexander Wilson, the son of testator Margaret Isabelle Kaufman and the sole surviving residuary beneficiary of her estate under the will, brought an application to remove her named estate trustees and attorneys for property and personal care.

Kaufman, who is 91 and currently suffers from advanced dementia, named her long-time personal lawyer Anthony Keller and her son-in-law Robert Hilton as her POAs and estate trustees in her 2006 will.

Wilson and his spouse, Hajra Wilson, brought an application to remove Keller and Hilton as POAs and as “executors and trustees” under the will, claiming the trustees demonstrated “a continuing antagonistic, adversarial and improper attitude” towards him and his wife, the decision states.

Keller filed an affidavit claiming that for many years, Wilson has been pursuing Kaufman, both in litigation and directly, to obtain money and property from her prior to her death, court documents show.

In a separate application, Keller and Hilton sought the court’s direction on whether they should give Wilson money from “the estate” of the mother under the Substitute Decisions Act of Ontario.

Duensing tells AdvocateDaily.com that a litigant seeking the removal of an attorney must present strong and compelling evidence of misconduct or neglect by the attorney.

"Moreover, a court must consider if the attorney serves the best interests of the grantor and that the person seeking the attorney’s removal has a genuine interest in the grantor’s welfare," he says.

In dismissing Wilson’s application, Justice David A. Broad stated: “In my view, the evidence of Mr. and Mrs. Wilson falls well short of strong and compelling evidence of misconduct or neglect on the part of the Attorneys.

“They have not established a basis for the Court to ignore the clear wishes of Mrs. Kaufman in appointing Messrs. Keller and Hilton as her attorneys for property. Moreover, Mr. and Mrs. Wilson have not presented a management plan which is a precondition to the replacement of the Attorneys by a guardianship order,” he continued.

Broad also stated, "It is difficult to conceive of an application for removal of estate trustees under a Will succeeding prior to the testator’s death."

Duensing, who did not act in this matter and makes his comments generally, agrees and says, “the office of the executor commences with the testator’s death, and not at the time the testator/testatrix makes the will,” he adds.

The court also dismissed the application by the attorneys/trustees.

“The court dismissed their application because a judge cannot provide opinion advice or direction on a trustee’s discretionary powers," Duensing says. "It's the duty of an attorney as well as executors to exercise their powers and duties diligently, with honesty, integrity, and in good faith. They cannot shift their responsibility to the courts."

According to Duensing, this case should be a clear warning to expectant beneficiaries not to seek the removal of an executor appointed by the testator prior to the testator’s death, and to attorneys and executors to restrict applications for opinion advice and direction to legal issues, as the court cannot provide opinion advice or direction on their discretionary powers.

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