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A Statutory Devolution of the Office of Administrator in Ontario?

Is devolution of the office of administrator possible in Ontario?[1] This may seem a strange question. It is clear that it is not possible at common law, but the common law is also clear that the rights and obligations of an executor can devolve upon her successor in certain circumstances. It means that, subject to certain conditions, when an executor dies, the responsibilities of the office are transmitted automatically to her executor. Devolution of executorship is described very well in the seminal Canadian text on Probate Practice.[2] The following are the preconditions before the doctrine can operate:

(a)  The executor must have obtained probate of the will. [3]

(b) When the executor dies she has not yet completed administration of the estate.[4]

(c)  The executor has not named a separate successor for the original estate.

(d) The executor’s executor must prove the first executor’s will.

I shall now describe how the doctrine operates with the aid of a couple of examples:

  1. A appoints B as her executor in her will. B proves the will, but dies before completing the administration of the estate and names F as his executor in his will, F then becomes the executor of A’s estate by devolution of executorship when she proves B’s will. However, if B died intestate and G is appointed his administrator, there can be no devolution. The intestacy ‘breaks the chain’.
  2. A appoints two or more executors, for example, B and C, and both prove A’s will, but C then dies and appoints an executor in his will. Later, B dies intestate. There can be no devolution to C’s executor, because the intestacy again ‘breaks the chain’.[5]

Thus, the administrator of an executor cannot succeed to the executorship.[6] Nor can the administrator of the estate of an administrator. Further, if the court appoints an executor of an estate, his executor does not succeed to the executorship of the original estate.[7]

But does the Trustee Act perhaps provide for a statutory devolution of the office of administrator? For this we need to look at the definitions and two very similar survivorship provisions in this Act.

Section 1 of the Trustee Act contains the following definitions:

“personal representative” means an executor, an administrator, and an administrator with the will annexed;

“trust” . . . extends to and includes the office of personal representative of a deceased person, and

“trustee” has a corresponding meaning and includes a trustee however appointed and several joint trustees.

Sections 3(2) and 46(2) provide:

3(2) Until the appointment of new trustees, the personal representatives or representative for the time being of a sole trustee, or where there were two or more trustees, of the last surviving or continuing trustee, are or is capable of exercising or performing any power or trust that was given to or capable of being exercised by the sole or last surviving trustee.

46(2) Until the appointment of new personal representatives, the personal representatives or representative for the time being of a sole personal representative, or, where there were two or more personal representatives, of the last surviving or continuing personal representative, may exercise or perform any power or trust that was given to, or capable of being exercised by the sole or last surviving personal representative.

Clearly, s. 46(2) is simply a copy of s. 3(2), the only change being the reference to ‘personal representative(s)’ instead of ‘trustee(s)’.

Before looking more closely at these provisions, it is clear from the definitions that the Trustee Act applies also, subject to some exceptions, to executors and administrators.[8] In my opinion this is regrettable, because it tends to confuse the two distinct offices of personal representatives and trustees. Some other trustee statutes do not apply to executors and administrators,[9] but instead deal with all issues concerning the administration of estates in separate legislation, where it belongs.[10] This does not mean that there is no overlap between the offices of personal representative and trustee. In many instances the principles that govern them, such as their succession, are very similar and although their offices remain distinct, many of their rights, duties, and powers can be assimilated as the Ontario Law Reform Commission recommended in its report on administration, although provision for the rights and obligations of the two office should be made in two separate statutes.[11] Of course, the Ontario Law Reform Commission’s reports on Trusts and Administration were never implemented and that was a great opportunity missed to modernize and rationalize the law applying to both offices. In consequence, Ontario is left with administration of estates legislation spread over several statutes, the Estates Act,[12] the Estates Administration Act,[13] and the Trustee Act,[14] which is regrettable. A convenient way in which the desired result could be achieved is to incorporate by reference provisions such as the appointment, retirement, removal and succession of trustees, contained in a revised Trustee Act, into a new Estate Administration Act. And the latter Act would rationalize the provisions of the current Act and the Estates Act.

Now I shall consider ss. 3(2) and 46(2) of the Trustee Act. First, arguably, there is no need for s. 46(2) at all. The definitions of ‘trust’ and ‘trustee’ in s. 1 of the Act mean that you can simply read either the word ‘executor(s), or ‘administrator(s)’, or both, or, for that matter the collective term, ‘personal representative(s)’ into s. 3(2) to replace the word ‘trustee(s)’. To keep it simple, I have inserted the collective term ‘personal representative(s)’ into s. 3(2). Thus the section will read (just like s. 46(2):

3(2) Until the appointment of new personal representatives, the personal representatives or personal representative for the time being of a sole personal representative, or where there were two or more personal representatives, of the last surviving or continuing personal representatives, are or is capable of exercising or performing any power or trust that was given to or capable of being exercised by the sole or last surviving personal representative.

The word ‘trust’ in the section when applied to personal representatives is somewhat strange, but it appears also in s. 46(2). In any event, arguably this does not refer to a true trust, but simply any fiduciary duty. As I have pointed out elsewhere, the word ‘trust’ is often used loosely and does not necessarily denote a relationship in which a trustee holds title to property for others.[15] Usually this does not cause any difficulty, but it can lead to misinterpretation and incorrect decisions.[16]

I believe therefore that section 3(2) provides for a statutory devolution of the office of executor and the office of administrator. So does s. 46(2) and, if thought necessary, one can rely on that section instead, though I believe it to be supererogatory. But in either case, in my opinion administration no longer breaks the chain of devolution.

It is true that both sections begin with the words, ‘Until the appointment of new …’ and that clearly means that a new administrator or executor can be appointed. But often that will not happen and cannot happen without an application to the court. By letting the personal representative of the deceased trustee, executor, or administrator assume the now vacant office to continue the administration of the trust or estate, you avoid the expense and delay of appointing someone new.

Of course this does not mean that the preconditions to devolution mentioned above have disappeared. However, they need to be revised to incorporate references to an administrator and to obtaining letters of administration.[17] Clearly, the preconditions could be incorporated into the legislation and probably should be. In addition, the provisions directed to the appointment, retirement, removal and succession of personal representatives, such as ss. 2(2), 37, and 46(2) of the Trustee Act, should be repealed when revising that Act. Instead, that Act should apply only to trustees. However, a new Estate Administration Act can then incorporate those provisions by reference.

When we then consider how the devolution of the office of administrator would work, we can apply the two examples used above, but somewhat modified, together with a third:

  1. A appoints B as her executor in her will. B proves the will, but dies before completing the administration of the estate and names F as his executor in his will, F then becomes the executor of A’s estate by devolution of executorship when she proves B’s will.

    Alternatively, assume that B died intestate and G is appointed his administrator. Then under ss. 3(2) or 46(2) the duties that B has not yet completed in A’s estate will be transmitted to G. The intestacy no longer ‘breaks the chain’.

  1. A appoints two or more executors, for example, B and C, and both prove A’s will, but C then dies and appoints an executor in his will. Later, B dies intestate and H is appointed his administrator. Then the duties that B has not yet completed in A’s estate will be transmitted to H. The intestacy no longer ‘breaks the chain’.
  2. The court appoints M as administrator in A’s estate. M appoints P as executor in her will, but dies before completing the administration of A’s estate. P can then succeed to the office of administrator in A’s estate.

[1]    My friend and colleague, Thomas Grozinger, posed this question to me and urged me to write a blog on it. I am indebted to him for raising the question and for sharing his ideas on the issue. I am also very grateful to Ian Hull for reading a draft of this blog and giving me his views on it.

[2]    Macdonell, Sheard and Hull on Probate Practice, 5th ed. by Ian M. Hull and Suzana Popovic-Montag (Toronto: Thomson Reuters/Carswell, 2016), pp. 248-49. The description of the doctrine in this blog is based on this helpful text.

[3]    Devolution is permitted only if the executor has proved the will. If he has not, the court must appoint an administrator of the original estate, ibid. p. 248;  Estates Act, R.S.O. 1990, c. E.21, s. 25.

[4]    If administration has been completed, there can be no devolution, Macdonell, p. 236. The executor has become a trustee once administration is complete (by virtue of an express or an implied assent), so her work as executor is done. See Albert H. Oosterhoff, ‘Locus of Title in an Unadministered Estate and the Law of Assent’ (2018), 48 Adv. Q. 44, §3. And see, e.g., Attenborough v. Solomon & Son, [1913] A.C. 76 (H.L.).

[5]    Macdonell, 248.

[6]    But see s. 46(2) of the Trustee Act, R.S.O. 1990, c. T.26, to be discussed below.

[7]    Ibid., s. 37(5).

[8]    The exceptions are these: Section 2(1) of the Act permits trustees to retire in certain circumstances, but s. 2(2) provides that this section does not apply to executors or administrators. They can be removed only by order of the court under s. 37 of the Act.

[9]    See, e.g., Trustee Act, R.S.B.C. 1996, c. 464, s. 1. See also An Act to Revise the Trustee Act, contained in the Ontario Law Reform Commission, Report on the Law of Trusts (Toronto, 1984), vol. II, s. 1(s), p. 487. And see Uniform Law Conference of Canada, Uniform Trustee Act (2012), https://ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Trustee-Act_1.pdf, although Part 6, ‘Trustee Compensation and Accounts’, does apply also to executors and administrators.

[10]   See, e.g., Wills, Estates and Succession Act, S.B.C. 2009, c, 13, Part 6, Administration of Estates.

[11]   Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (Toronto, 1991), chapter 2.

[12]   R.S.O. 1990, c. E.21.

[13]   R.S.O. 1990, c. E.22.

[14]   R.S.O. 1990, c. T.23.

[15]   See Oosterhoff, ‘Locus of Title’, footnote XX [4], supra, §2,7, where I discuss the use of the word ‘trust’ in s. 2(1) of Ontario’s Estate Administration Act.

[16]   See my blog, ‘Locus of Title in an Unadministered Estate Redux’, http://welpartners.com/blog/2020/02/locus-of-title-in-an-unadministered-estate-redux/, which is a comment on Boger Estate v. Minister of National Revenue, 1993 CarswellNat 930, 50 E.T.R. 1 (F.C.A.). A personal representative does not hold title to the estate assets in trust for the beneficiaries. She holds the full unbifurcated title to the assets until administration is complete. Only at that point does a true trust arise.

[17]   Of course, if there is an administrator, he must perforce have been granted letters of administration.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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