Renunciation and Resignation are distinct concepts in relation to the role of an Estate Trustee. Understanding this distinction is important for an Estate Trustee who has not yet acted and is unsure whether they wish to administer an Estate.
Renunciation
Renunciation is the formal act whereby an Estate Trustee entitled to a grant of probate renounces that right.[1] In this circumstance, the would-be Estate Trustee has taken no action to administer the Estate.
In Ontario, an Estate Trustee who is appointed under a Will may renounce by completing a Form 74G (Renunciation and Consent). This form also provides that the Estate Trustee may consent to the appointment to another individual or institution receiving a Certificate of Appointment of Estate Trustee (“CAET”).
The legal effect of renouncing is contained in section 34 of the Estates Act,[2] which provides:
Consequences upon executor renouncing
34 Where a person renounces probate of the will of which the person is appointed an executor, the person’s rights in respect of the executorship wholly cease, and the representation to the testator and the administration of the testator’s property, without any further renunciation, goes, devolves and is committed in like manner as if such person had not been appointed executor.[3]
Resignation
Renunciation is generally not available if a party has already “intermeddled” with an Estate. Intermeddling is used to describe acts of an individual who deals with an Estate without having been formally recognised as Estate Trustee through a CAET. If the Estate Trustee no longer wishes to act, they must resign.
In Chambers v. Chambers,[4] the Ontario Court of Appeal provided a helpful analysis of the related concepts of renunciation and resignation. The appellate court noted that “while executors may renounce at any time, (a right which is usually exercised before applying to probate) the courts have been reluctant to allow an executor to renounce after having intermeddled in the estate, or after having applied for probate”.[5]
Even a slight act of intermeddling with the assets of the deceased may prevent an executor from renouncing. However, the court noted that this rule has been applied with some flexibility in England.[6]
In Water’s Law of Trusts in Canada,[7] the authors note that:
Once a trustee has accepted the office, he cannot refuse, or to use the correct terminology, disclaim it. He can then only resign, his acts between acceptance and resignation being those of a duly appointed trustee. Disclaimer is available to all those who have been appointed trustees, whether as original trustees, new trustees, or additional trustees, but who have not expressly accepted and who have done no act which is deemed implied acceptance.
[emphasis added]
An Estate Trustee who has intermeddled in an Estate and wishes to resign may only be removed from their office by the court. Section 37(1) and (3) of the Trustee Act[8] provide that:
Removal of personal representatives
37 (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee and may appoint some other proper person or persons to act in the place of the executor or administrator so removed. R.S.O. 1990, c. T.23, s. 37 (1); 2000, c. 26, Sched. A, s. 15 (2).
[…]
Who may apply
(3) The order may be made upon the application of any executor or administrator desiring to be relieved from the duties of the office, or of any executor or administrator complaining of the conduct of a co-executor or co-administrator, or of any person interested in the estate of the deceased.[9]
The added requirement of a resigning Estate Trustee is approval of their administration. In Sheard Estate,[10] the Ontario Superior Court noted that:
Executors must have their administration approved and be discharged. There are two ways of doing so. First, they may apply for a passing of accounts. Alternatively, they can avoid the cost and delay of a passing and instead ask the beneficiaries to approve their administration and provide for their informal discharge directly.[11]
[emphasis added]
Therefore, an Estate Trustee who has intermeddled in the property of the Estate may be required to pass their accounts and demonstrate they administered the Estate prudently and honestly.[12]. This process can be laborious and expensive. An estate trustee who cannot satisfactorily account for Estate property will be chargeable with them.[13]
Concluding Comments
The role of an Estate Trustee can be onerous, stressful and is accompanied by extensive duties to the beneficiaries of an Estate.[14] For these reasons it is increasingly common for an Estate Trustee appointed under a Will to renounce in favour of another individual or trust company.
Accordingly, caution must be exercised by those who are deciding whether to act. Intermeddling in an Estate extinguishes the right to renounce, gives rise to further fiduciary duties and resignation can occur with removal by a court.
—
[1] Halsbury’s Laws of Canada, Wills and Estates, 1st ed. (Reissue) (Markham: LexisNexis Canada Inc., 2012), at p. 537
[2] Estates Act, R.S.O. 1990, c. E.21.
[3] Ibid. at section 34.
[4] Chambers v. Chambers, 2013 ONCA 511.
[5] Ibid. at para 66.
[6] Ibid.
[7] Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada Limited, 2012), at p. 884.
[8] Trustee Act, R.S.O. 1990, c. T.23.
[9] Trustee Act, R.S.O. 1990, c. T.23 at ss. 37(1) and (3).
[10] Sheard Estate, 2013 ONSC 7729 (CanLII).
[11] Ibid. at para 26.
[12] Zimmerman v. McMichael Estate, 2010 ONSC 2947 (CanLII) at para 31.
[13] Chisholm v. Barnard (1864), 10 Gr. 479 (U.C. Ch.) at 481; Saunders v. Vautier: Trost v. Cook (1920), 48 O.L.R. 278 (Ont. H.C.); Zurosky Estate, Re, [1992] O.J. No. 1292 (Ont. Gen. Div.).
[14] See WEL on Will and Estate Challenges (2024), Chapter 9 (Fiduciary Roles).
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Written by: Oliver O'Brien
Posted on: March 17, 2025
Categories: Commentary, WEL Newsletter
Renunciation and Resignation are distinct concepts in relation to the role of an Estate Trustee. Understanding this distinction is important for an Estate Trustee who has not yet acted and is unsure whether they wish to administer an Estate.
Renunciation
Renunciation is the formal act whereby an Estate Trustee entitled to a grant of probate renounces that right.[1] In this circumstance, the would-be Estate Trustee has taken no action to administer the Estate.
In Ontario, an Estate Trustee who is appointed under a Will may renounce by completing a Form 74G (Renunciation and Consent). This form also provides that the Estate Trustee may consent to the appointment to another individual or institution receiving a Certificate of Appointment of Estate Trustee (“CAET”).
The legal effect of renouncing is contained in section 34 of the Estates Act,[2] which provides:
Consequences upon executor renouncing
34 Where a person renounces probate of the will of which the person is appointed an executor, the person’s rights in respect of the executorship wholly cease, and the representation to the testator and the administration of the testator’s property, without any further renunciation, goes, devolves and is committed in like manner as if such person had not been appointed executor.[3]
Resignation
Renunciation is generally not available if a party has already “intermeddled” with an Estate. Intermeddling is used to describe acts of an individual who deals with an Estate without having been formally recognised as Estate Trustee through a CAET. If the Estate Trustee no longer wishes to act, they must resign.
In Chambers v. Chambers,[4] the Ontario Court of Appeal provided a helpful analysis of the related concepts of renunciation and resignation. The appellate court noted that “while executors may renounce at any time, (a right which is usually exercised before applying to probate) the courts have been reluctant to allow an executor to renounce after having intermeddled in the estate, or after having applied for probate”.[5]
Even a slight act of intermeddling with the assets of the deceased may prevent an executor from renouncing. However, the court noted that this rule has been applied with some flexibility in England.[6]
In Water’s Law of Trusts in Canada,[7] the authors note that:
Once a trustee has accepted the office, he cannot refuse, or to use the correct terminology, disclaim it. He can then only resign, his acts between acceptance and resignation being those of a duly appointed trustee. Disclaimer is available to all those who have been appointed trustees, whether as original trustees, new trustees, or additional trustees, but who have not expressly accepted and who have done no act which is deemed implied acceptance.
[emphasis added]
An Estate Trustee who has intermeddled in an Estate and wishes to resign may only be removed from their office by the court. Section 37(1) and (3) of the Trustee Act[8] provide that:
Removal of personal representatives
37 (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee and may appoint some other proper person or persons to act in the place of the executor or administrator so removed. R.S.O. 1990, c. T.23, s. 37 (1); 2000, c. 26, Sched. A, s. 15 (2).
[…]
Who may apply
(3) The order may be made upon the application of any executor or administrator desiring to be relieved from the duties of the office, or of any executor or administrator complaining of the conduct of a co-executor or co-administrator, or of any person interested in the estate of the deceased.[9]
The added requirement of a resigning Estate Trustee is approval of their administration. In Sheard Estate,[10] the Ontario Superior Court noted that:
Executors must have their administration approved and be discharged. There are two ways of doing so. First, they may apply for a passing of accounts. Alternatively, they can avoid the cost and delay of a passing and instead ask the beneficiaries to approve their administration and provide for their informal discharge directly.[11]
[emphasis added]
Therefore, an Estate Trustee who has intermeddled in the property of the Estate may be required to pass their accounts and demonstrate they administered the Estate prudently and honestly.[12]. This process can be laborious and expensive. An estate trustee who cannot satisfactorily account for Estate property will be chargeable with them.[13]
Concluding Comments
The role of an Estate Trustee can be onerous, stressful and is accompanied by extensive duties to the beneficiaries of an Estate.[14] For these reasons it is increasingly common for an Estate Trustee appointed under a Will to renounce in favour of another individual or trust company.
Accordingly, caution must be exercised by those who are deciding whether to act. Intermeddling in an Estate extinguishes the right to renounce, gives rise to further fiduciary duties and resignation can occur with removal by a court.
—
[1] Halsbury’s Laws of Canada, Wills and Estates, 1st ed. (Reissue) (Markham: LexisNexis Canada Inc., 2012), at p. 537
[2] Estates Act, R.S.O. 1990, c. E.21.
[3] Ibid. at section 34.
[4] Chambers v. Chambers, 2013 ONCA 511.
[5] Ibid. at para 66.
[6] Ibid.
[7] Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada Limited, 2012), at p. 884.
[8] Trustee Act, R.S.O. 1990, c. T.23.
[9] Trustee Act, R.S.O. 1990, c. T.23 at ss. 37(1) and (3).
[10] Sheard Estate, 2013 ONSC 7729 (CanLII).
[11] Ibid. at para 26.
[12] Zimmerman v. McMichael Estate, 2010 ONSC 2947 (CanLII) at para 31.
[13] Chisholm v. Barnard (1864), 10 Gr. 479 (U.C. Ch.) at 481; Saunders v. Vautier: Trost v. Cook (1920), 48 O.L.R. 278 (Ont. H.C.); Zurosky Estate, Re, [1992] O.J. No. 1292 (Ont. Gen. Div.).
[14] See WEL on Will and Estate Challenges (2024), Chapter 9 (Fiduciary Roles).
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