In Re James Estate,[1] the court, pursuant to Rule 74.14(4) of the Rules of Civil Procedure,[2] had to consider whether an application for a certificate of appointment of estate trustee with a will (“CAET”) required court determination.
The issue concerned whether the court should exercise its inherent discretion to refuse the application on the grounds that the retained estate trustee was a disbarred lawyer. In this rare case, the court determined it should exercise its discretion and rejected the appointment.
Background
The deceased died on April 8, 2023. He made a will on September 7, 2022, in which he named a close friend as executrix and trustee. On the back sheet of the will, where one would expect the name of a lawyer (if the will had been prepared by a lawyer), read the name, Mr. Bishop (the “Disbarred Lawyer”), signed as “Consultant.”
Two days after the deceased passed, the executrix renounced her right to a CAET. Later that month, four of the beneficiaries entitled to a share of the distribution of the estate signed consents to the application of the Disbarred Lawyer, with a fifth signing approximately a week later.
By a notice of motion dated October 17, 2023, the beneficiaries then asked the court to grant the retention of the Disbarred Lawyer as the executor of the estate.
The court’s discretion
The court was not aware of any authority which holds that the removal of an individual’s licence to practise law automatically disqualifies that individual from acting as an estate trustee.[3]
The court did, however, look to Ian M. Hull and Suzana Popovic-Montag, in Macdonell, Sheard and Hull on Probate Practice, who wrote that the Ontario Superior Court of Justice has the inherent jurisdiction to remove and appoint trustees and to pass over executors named in a will.[4]
The court also looked at the reluctance of courts to interfere with a testator’s expressed intentions and also, how past misconduct on part of a trustee is not a basis to interfere with a testator’s choice of personal representative, unless there are grounds for finding that the interests of the estate are likely to be endangered or there is a risk the estate will not be properly administered.[5]
In making its determination, the court first looked to the Law Society Act,[6] which prohibits former lawyers from providing legal services.[7] Pursuant to the Estates Act,[8] the court also held that it had a responsibility respecting grants of probate or letters of administration, including the consideration of applications for appointment of estate trustees with, or without, a will.
Disposition
The decision in Re James Estate notably turned on the fact that the Disbarred Lawyer was not nominated as estate trustee by the testator. If he had, it would potentially result in the testator’s wishes prevailing over other concerns about the suitability of the appointment.[9]
While a 2012 Law Society hearing panel found that the Disbarred Lawyer did not appear to pose any real concern that he would repeat the conduct that caused him to lose his licence to practice law,[10] the court in Re James Estate still held that he was “an individual who has been adjudicated to have participated, or knowingly assisted, in dishonest and fraudulent conduct…As a result, he is no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness.”[11]
There was also evidence that, in addition to the appearance of his name on the back sheet, his presence as a witness to the will, and the renunciation and consents just mere weeks after the death of the testator, the Disbarred Lawyer continued to advise the family members on important matters. In the face of these facts, the Disbarred Lawyer offered no evidence to dispel the court’s concerns regarding his involvement with the estate.
Considering all the circumstances, the court invoked its inherent discretion to decline an application for the appointment of this would-be estate trustee.
Final Thoughts
The court was ultimately concerned that aspects of the Disbarred Lawyer’s involvement with the estate “at the very least skirt around the fringes of the unauthorized practice of law.”
While there is no rule that precludes a disbarred lawyer from being appointed as an estate trustee, in this case, the conduct raised ample grounds to believe the Disbarred Lawyer may have engaged in prohibited activities. In answering the question of whether a disbarred lawyer can be retained to act as an executor of an estate, the answer will be determined by the testator’s intentions and the degree of involvement the disbarred lawyer has in the estate.
—
[1] 2023 ONSC 6432 [Re James Estate].
[2] R.R.O. 1990, Reg. 194.
[3] Re James Estate, supra note 1 at para. 13.
[4] Ian M. Hull and Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016) at p. 249.
[5] See Re James Estate, supra note 1 at para. 14 where the court cites with authority the decision in St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (ON SC) [St. Joseph’s Health Centre].
[6] R.S.O. 1990, c. L.8 [Law Society Act].
[7] Pursuant to section 1(5) of the Law Society Act, a person provides legal services “if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of the person.” Subsection 6 contains a non-exhaustive list of what are legal services and includes if a person selects, drafts, completes or revises, on behalf of a person, “a testamentary document, trust document, power of attorney or other document that relates to the estate of a person.”
[8] R.S.O. 1990, c. E.21, s. 7(1) (as amended).
[9] Re James Estate, supra note 1 at para. 22.
[10] In a decision on appeal to the Divisional Court, the penalty of revocation of the Disbarred Lawyer’s licence to practice law was upheld. The Court cited with authority, the English Court of Appeal in Bolton v Law Society, [1994] 1 W.L.R. 512, at p. 518 who held that the fundamental reasons for revoking a lawyer’s licence in these kinds of cases was “to maintain the reputation of the solicitor’s profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.”
[11] Ibid., at para. 21.
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Written by: Brett Book
Posted on: November 30, 2023
Categories: Commentary, WEL Newsletter
In Re James Estate,[1] the court, pursuant to Rule 74.14(4) of the Rules of Civil Procedure,[2] had to consider whether an application for a certificate of appointment of estate trustee with a will (“CAET”) required court determination.
The issue concerned whether the court should exercise its inherent discretion to refuse the application on the grounds that the retained estate trustee was a disbarred lawyer. In this rare case, the court determined it should exercise its discretion and rejected the appointment.
Background
The deceased died on April 8, 2023. He made a will on September 7, 2022, in which he named a close friend as executrix and trustee. On the back sheet of the will, where one would expect the name of a lawyer (if the will had been prepared by a lawyer), read the name, Mr. Bishop (the “Disbarred Lawyer”), signed as “Consultant.”
Two days after the deceased passed, the executrix renounced her right to a CAET. Later that month, four of the beneficiaries entitled to a share of the distribution of the estate signed consents to the application of the Disbarred Lawyer, with a fifth signing approximately a week later.
By a notice of motion dated October 17, 2023, the beneficiaries then asked the court to grant the retention of the Disbarred Lawyer as the executor of the estate.
The court’s discretion
The court was not aware of any authority which holds that the removal of an individual’s licence to practise law automatically disqualifies that individual from acting as an estate trustee.[3]
The court did, however, look to Ian M. Hull and Suzana Popovic-Montag, in Macdonell, Sheard and Hull on Probate Practice, who wrote that the Ontario Superior Court of Justice has the inherent jurisdiction to remove and appoint trustees and to pass over executors named in a will.[4]
The court also looked at the reluctance of courts to interfere with a testator’s expressed intentions and also, how past misconduct on part of a trustee is not a basis to interfere with a testator’s choice of personal representative, unless there are grounds for finding that the interests of the estate are likely to be endangered or there is a risk the estate will not be properly administered.[5]
In making its determination, the court first looked to the Law Society Act,[6] which prohibits former lawyers from providing legal services.[7] Pursuant to the Estates Act,[8] the court also held that it had a responsibility respecting grants of probate or letters of administration, including the consideration of applications for appointment of estate trustees with, or without, a will.
Disposition
The decision in Re James Estate notably turned on the fact that the Disbarred Lawyer was not nominated as estate trustee by the testator. If he had, it would potentially result in the testator’s wishes prevailing over other concerns about the suitability of the appointment.[9]
While a 2012 Law Society hearing panel found that the Disbarred Lawyer did not appear to pose any real concern that he would repeat the conduct that caused him to lose his licence to practice law,[10] the court in Re James Estate still held that he was “an individual who has been adjudicated to have participated, or knowingly assisted, in dishonest and fraudulent conduct…As a result, he is no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness.”[11]
There was also evidence that, in addition to the appearance of his name on the back sheet, his presence as a witness to the will, and the renunciation and consents just mere weeks after the death of the testator, the Disbarred Lawyer continued to advise the family members on important matters. In the face of these facts, the Disbarred Lawyer offered no evidence to dispel the court’s concerns regarding his involvement with the estate.
Considering all the circumstances, the court invoked its inherent discretion to decline an application for the appointment of this would-be estate trustee.
Final Thoughts
The court was ultimately concerned that aspects of the Disbarred Lawyer’s involvement with the estate “at the very least skirt around the fringes of the unauthorized practice of law.”
While there is no rule that precludes a disbarred lawyer from being appointed as an estate trustee, in this case, the conduct raised ample grounds to believe the Disbarred Lawyer may have engaged in prohibited activities. In answering the question of whether a disbarred lawyer can be retained to act as an executor of an estate, the answer will be determined by the testator’s intentions and the degree of involvement the disbarred lawyer has in the estate.
—
[1] 2023 ONSC 6432 [Re James Estate].
[2] R.R.O. 1990, Reg. 194.
[3] Re James Estate, supra note 1 at para. 13.
[4] Ian M. Hull and Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016) at p. 249.
[5] See Re James Estate, supra note 1 at para. 14 where the court cites with authority the decision in St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (ON SC) [St. Joseph’s Health Centre].
[6] R.S.O. 1990, c. L.8 [Law Society Act].
[7] Pursuant to section 1(5) of the Law Society Act, a person provides legal services “if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of the person.” Subsection 6 contains a non-exhaustive list of what are legal services and includes if a person selects, drafts, completes or revises, on behalf of a person, “a testamentary document, trust document, power of attorney or other document that relates to the estate of a person.”
[8] R.S.O. 1990, c. E.21, s. 7(1) (as amended).
[9] Re James Estate, supra note 1 at para. 22.
[10] In a decision on appeal to the Divisional Court, the penalty of revocation of the Disbarred Lawyer’s licence to practice law was upheld. The Court cited with authority, the English Court of Appeal in Bolton v Law Society, [1994] 1 W.L.R. 512, at p. 518 who held that the fundamental reasons for revoking a lawyer’s licence in these kinds of cases was “to maintain the reputation of the solicitor’s profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.”
[11] Ibid., at para. 21.
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