Many people practising in the area of estates believe that where an individual dies without a will, and there is no spouse or next-of-kin willing or able to be appointed estate trustee without a will, the appointment of a third party can be made on the consent of a majority of beneficiaries under the Will. This is a fallacy. A reading of the applicable section of the Estates Act (the “Act”)[1] reveals that it is not the beneficiaries who are the parties empowered to appoint an estate trustee, but rather the persons entitled to the appointment themselves, who hold the power to appoint.

Take the hypothetical example of two common law spouses, John and Beth. Beth dies without a Will and as a result, John is not entitled to any share of the estate. John decides to make a dependant support claim. The question becomes who will be appointed estate trustee without a Will?

John cannot himself be appointed estate trustee because he will be making a claim against the estate and will therefore be in a clear conflict of interest. If Beth has next-of-kin resident in Ontario, any of the next-of-kin could apply under section 29(1). But what happens if Beth’s only next-of-kin reside in the United States? Under section 5 of the Act, “letters of administration shall not be granted to a person not residing in Ontario”. Therefore, none of the family in the United States are eligible for the appointment. Can a majority of beneficiaries appoint a third party of their choosing? The answer is no.

Section 29(2) of the Act, states that it is “the persons entitled to the administration [of the estate], or a majority of them as are resident in Ontario”, who can request the appointment of a third party. This means it is not the beneficiaries who can form the majority, but the people who are entitled to be appointed themselves.

In the above hypothetical case, even though John has no intention of being appointed estate trustee, as the common law spouse[2], he is the only person, aside from the Court, who is entitled to appoint a third party.

Of course, there are some limitations on this power: The Court always has residual discretion under subsection 29(3) of the Act, under “special circumstances”, to appoint a person “as it thinks fit”. This override provision has been used to protect against conflicts of interest[3] and to protect the interests of the residuary beneficiaries of an estate[4].

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[1] R.S.O. 1990, c. E.21, s. 29(2).

[2] The term “common law spouse” is used for simplicity, but the actual wording of s. 29(1)(a) is: the “person with whom the deceased was living in a conjugal relationship outside of marriage immediately before the death.

[3] Re Becker, 1986 CanLII 2596 (ON SC).

[4] Letterstedt v. Broers (1884), 9 App. Cas. 371 (P.C.).