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Written by: WEL Partners
Posted on: July 6, 2012
Categories: Commentary
Today we are reviewing Sentineal v. Sentineal, 2011 ONSC 6007 the third case in our series involving the removal of executors and trustees. We have previously blogged about recent cases where estate trustees have been removed because there were hostilities between co-executors and where the executor has personally spent estate assets. As discussed below, in Sentineal the Court chose not to remove the executor for failing to fulfill his executor duties and gave him another chance.
Frederick Sentineal Senior started a family-run horse drawn carriage business in Niagara-on-the-Lake with his three sons, Fred Jr., Jack and Jeff. In what could be seen as a sign of things to come, Fred Jr. quickly became estranged from his family as a result of disputes arising out of the business. Fred Sr. died in 2004 and his son Jack was appointed the executor of his Estate. Jack and Jeff continued to run the family business.
In 2005, Jack in his personal capacity and as executor and on behalf of the family business commenced an action against his brother Jeff and his wife alleging that they were misappropriating funds from the business. After eight days of trial in 2009 the parties entered into minutes of settlement which required Jack to sell certain estate property and to divide the proceeds equally between himself and Jeff. While Jack listed the properties for sale, they had not been sold as of December 2011. Jeff brought this application to have Jack removed as executor for his father’s Estate for failing to sell the estate properties as required.
In rendering the decision, Justice Hambly observed that while it had been over 7 years since the death of Fred Sr. and the estate property had still not been sold, the “removal of an estate trustee should only occur on the clearest of evidence that there is no other course to follow”. Instead of removing Jack as executor, Justice Hambly set a strict timetable that the property should be sold by June 30, 2012, “otherwise there will be a heavy onus on Jack to explain why he should not be removed”. As this is now the first week in July 2012 the next question is – did the property get sold? Or will this case be in front of the courts again? We will have to wait and see.
This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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