Application by Sole Executor for His Own Removal
1. Introduction
It is not common for an executor to ask the court to remove him from his office, but it does happen. If the applicant is the sole executor, the court will normally insist that he makes provision for a substitute to be appointed. Only in exceptional cases will the court remove a sole executor without a provision for a substitute. In Hill v Hill[1] the court discusses the law on this issue.
2. Facts
The testator died in 2009, survived by his two children, Bryan and Solange, and his five grandchildren, Devon, Aaron, Bryan Jr, George, and Jordan. He made specific bequests to various persons. The testator left his house in Markham to his common law wife, Celia. He left his house in England in trust for his grandson Devon until he turned 25 and directed that the house then be sold and the proceeds paid to Devon. He held a number of other properties in the Caribbean. He devised his land known as the Pickard Estate on the Island of Dominica to be divided among a friend, his neighbour’s son, his grandchildren, and Solange. He devised his house known as Grand Savannah, also on the Island of Dominica to his son Bryan, and the land he owned on the Island of Antigua to his grandson Aaron. He left the residue of his Estate equally to his children, Bryan and Solange.
The Will appointed three executors. Two of them, his brother Rowland and Celia obtained probate in 2011. In 2012 Celia made an application for dependants’ support. The parties settled the application, which was approved by the court in 2013. The Minutes of Settlement noted that there were insufficient assets in the Estate to satisfy all the bequests and devises and to pay Celia’s claim. The order approving the settlement removed Celia as Executor, directed that Rowland would be discharged from his obligation to pass his accounts, except to demonstrate that he complied with the Minutes of Settlement and his administrative obligations from the date of the order to the wind-up of the estate. The order directed Rowland to sell the house in England to pay the estate’s liabilities, with unspent monies to be paid into court and paid to Devon when he turned 18.
Rowland, who was 75 years old and was not a beneficiary under the will, brought this application for an order removing himself as executor and seeking the court’s directions regarding his informal accounting. The testator’s son Bryan opposed the application. The application was supported by an affidavit from a medical doctor which stated that the protracted duties of administering the estate caused Rowland severe emotional distress and that he was diagnosed with severe anxiety and depression. The application was also supported by the Applicant’s affidavit in which he described the deleterious effect the administration of the estate, as well as family disharmony, had on his health. In his opinion, he would not be able to continue the administration. Among other things, he noted that the beneficiaries have been disinterested in the administration, even though he sought their engagement. He waived compensation for acting as executor but did not provide any suggestions for the appointment of a substitute. Bryan disputed the Applicant’s assertion that he had tried for years to engage the beneficiaries and to seek their positions and views. He also objected to the Applicant’s request to discharge him from his duty to provide a formal accounting and insisted that only a formal accounting would suffice.
The Applicant did provide an informal accounting consisting of extensive documentary evidence about the estate’s assets and their value.
3. Analysis and Judgment
Justice MD Faieta began his analysis by noting that removing a sole executor without the appointment of a replacement is highly unusual. He relied on Gonder v Gonder Estate,[2] which stated that the retiring executor ordinarily has the obligation to locate a replacement, and that removal of an executor without the appointment of a replacement can happen only when no other option is available. It went on to state that to ensure the proper administration of an estate the court has an inherent jurisdiction to make provision for a replacement by ordering an appropriate mechanism to locate a replacement.
His Honour accepted the fact that professional trustees would be unwilling to accept an appointment of substitute executor, since the Estate was complex and lacked funds. He concluded that the Applicant, not having created the problem, was not required to sacrifice his health to administer the Estate. He suggested that the parties ought to explore an arrangement to vary the Will. Meanwhile he adjourned the application to 10 September 2024, at which time an order would be issued to permit the Applicant to resign on 30 September. Meanwhile, he directed the Applicant to ask the beneficiaries to provide their views about who should be appointed as substitute executor and on any other issues related to the administration of the estate. He expressed the hope that this may lead to an exploration of a deed of arrangement to vary the will and an offer from one of the beneficiaries to act as executor.
His Honour also ordered that the Applicant provide an informal accounting as contemplated in an endorsement by Sanfilippo J approving an amendment to the Application in May 2023.
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[1] 2024 ONSC 3023.
[2] 2010 ONCA 172.
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Written by: Albert Oosterhoff
Posted on: November 1, 2024
Categories: Commentary, Estate Administration, Estate Litigation, Estate Trustees, WEL Newsletter
1. Introduction
It is not common for an executor to ask the court to remove him from his office, but it does happen. If the applicant is the sole executor, the court will normally insist that he makes provision for a substitute to be appointed. Only in exceptional cases will the court remove a sole executor without a provision for a substitute. In Hill v Hill[1] the court discusses the law on this issue.
2. Facts
The testator died in 2009, survived by his two children, Bryan and Solange, and his five grandchildren, Devon, Aaron, Bryan Jr, George, and Jordan. He made specific bequests to various persons. The testator left his house in Markham to his common law wife, Celia. He left his house in England in trust for his grandson Devon until he turned 25 and directed that the house then be sold and the proceeds paid to Devon. He held a number of other properties in the Caribbean. He devised his land known as the Pickard Estate on the Island of Dominica to be divided among a friend, his neighbour’s son, his grandchildren, and Solange. He devised his house known as Grand Savannah, also on the Island of Dominica to his son Bryan, and the land he owned on the Island of Antigua to his grandson Aaron. He left the residue of his Estate equally to his children, Bryan and Solange.
The Will appointed three executors. Two of them, his brother Rowland and Celia obtained probate in 2011. In 2012 Celia made an application for dependants’ support. The parties settled the application, which was approved by the court in 2013. The Minutes of Settlement noted that there were insufficient assets in the Estate to satisfy all the bequests and devises and to pay Celia’s claim. The order approving the settlement removed Celia as Executor, directed that Rowland would be discharged from his obligation to pass his accounts, except to demonstrate that he complied with the Minutes of Settlement and his administrative obligations from the date of the order to the wind-up of the estate. The order directed Rowland to sell the house in England to pay the estate’s liabilities, with unspent monies to be paid into court and paid to Devon when he turned 18.
Rowland, who was 75 years old and was not a beneficiary under the will, brought this application for an order removing himself as executor and seeking the court’s directions regarding his informal accounting. The testator’s son Bryan opposed the application. The application was supported by an affidavit from a medical doctor which stated that the protracted duties of administering the estate caused Rowland severe emotional distress and that he was diagnosed with severe anxiety and depression. The application was also supported by the Applicant’s affidavit in which he described the deleterious effect the administration of the estate, as well as family disharmony, had on his health. In his opinion, he would not be able to continue the administration. Among other things, he noted that the beneficiaries have been disinterested in the administration, even though he sought their engagement. He waived compensation for acting as executor but did not provide any suggestions for the appointment of a substitute. Bryan disputed the Applicant’s assertion that he had tried for years to engage the beneficiaries and to seek their positions and views. He also objected to the Applicant’s request to discharge him from his duty to provide a formal accounting and insisted that only a formal accounting would suffice.
The Applicant did provide an informal accounting consisting of extensive documentary evidence about the estate’s assets and their value.
3. Analysis and Judgment
Justice MD Faieta began his analysis by noting that removing a sole executor without the appointment of a replacement is highly unusual. He relied on Gonder v Gonder Estate,[2] which stated that the retiring executor ordinarily has the obligation to locate a replacement, and that removal of an executor without the appointment of a replacement can happen only when no other option is available. It went on to state that to ensure the proper administration of an estate the court has an inherent jurisdiction to make provision for a replacement by ordering an appropriate mechanism to locate a replacement.
His Honour accepted the fact that professional trustees would be unwilling to accept an appointment of substitute executor, since the Estate was complex and lacked funds. He concluded that the Applicant, not having created the problem, was not required to sacrifice his health to administer the Estate. He suggested that the parties ought to explore an arrangement to vary the Will. Meanwhile he adjourned the application to 10 September 2024, at which time an order would be issued to permit the Applicant to resign on 30 September. Meanwhile, he directed the Applicant to ask the beneficiaries to provide their views about who should be appointed as substitute executor and on any other issues related to the administration of the estate. He expressed the hope that this may lead to an exploration of a deed of arrangement to vary the will and an offer from one of the beneficiaries to act as executor.
His Honour also ordered that the Applicant provide an informal accounting as contemplated in an endorsement by Sanfilippo J approving an amendment to the Application in May 2023.
—
[1] 2024 ONSC 3023.
[2] 2010 ONCA 172.
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