In MacKinnon v. MacKinnon, 2025 ONSC 2426[1] (“Mackinnon”), the Court addressed the removal of an estate trustee who failed to complete the administration of her deceased father’s estate for nearly two decades. This case serves as a reminder of the duties entrusted to estate trustees and the legal implications of failing to fulfill these obligations.

In MacKinnon, Robert Wilson MacKinnon (“Robert”) and Maxine Roxella MacKinnon (“Maxine”) passed away on October 11, 2006, and on April 30, 2003, respectively. Together, they had two children, William (the “Applicant”) and Kimberly (the “Respondent”).

In 1981, Robert acquired a cottage (the “Cottage Property”), and in 1983 he transferred title to the Cottage Property to both himself, and Maxine as equal tenants in common. At the time of Maxine’s death, her estate held a 50% interest in the Cottage Property.[2]

At the time the Application was commenced, the Applicant suffered from Dementia and lacked capacity to manage property or initiate legal proceedings. On this basis, his daughter, Bobbi-Jo commenced the Application as his litigation guardian. Bobbi-Jo was also appointed as the Applicant’s attorney for property.[3]

The Wills

Maxine and Robert shared mirror wills (the “Wills”). The dispositive terms of Maxine’s Will provided her 50% interest in the Cottage Property to the Respondent and divided the residue of her estate equally amongst the Applicant and the Respondent.[4]

Upon Maxine’s death, Robert inherited Maxine’s 50% share in the Cottage Property. He then executed a codicil which provided for his 50% share of the Cottage Property to go to the Applicant. Robert’s codicil was handwritten by his sister, Elizabeth, and was witnessed by two neighbours who signed the affidavit of execution. However, during this proceeding, Bobbi-Jo was unable to locate the neighbours.[5]

Upon Robert’s death, the Wills and Roberts codicil directed Robert’s 50% interest in the Cottage Property to the Applicant and the residue of Robert’s Estate to be divided equally amongst the Applicant and the Respondent. The Applicant and the Respondent were appointed as Estate Trustees.

The Cottage Property was the main asset of Robert’s estate since Maxine and Robert had no other known assets.

Due to the Applicant’s finding of incapacity, he was unable to act as an estate trustee for Robert’s estate. This left the Respondent as the only remaining appointed estate trustee pursuant to Robert’s will.

As of 2024, the Respondent failed to fully administer Maxine or Robert’s estate, and a certificate of appointment had not been issued for either estate. Additionally, Maxine remained on title to the Cottage Property, despite her passing in 2003. As a result, both Maxine and Robert’s estates were left in a state of limbo.

In 2024, the Respondent assured Bobbi-Jo in her capacity as the Applicant’s litigation guardian that she would begin the administration of both Maxine and Robert’s estate. However, shortly thereafter, she ceased communication with the litigation guardian and counsel. [6]

On this basis the court agreed with the Applicant and asserted that a professional estate trustee must be appointed to administer both Maxine and Robert’s estate.

The Respondents Removal as Estate Trustee

The court’s decision to remove an estate trustee was grounded in Sections 5(1) and 37(1) of the Trustee Act, which allows for the removal and replacement of trustees when they fail to fulfill their duties. The court in Mackinnon emphasized that the welfare of the beneficiaries is paramount, as stated in Sassano v. Iozzo, and that the Respondent’s prolonged inaction necessitated court intervention.[7]

The court stated the following about the passing over of an estate trustee:

[24] This case is similar to Kinnear v. White, 2022 ONSC 2576, where Dawe J. (as he then was) held, at para. 15, that the failure of the appointed estate trustee to take any steps in the administration of the estate although urged to do so, including the failure to apply for a Certificate of Appointment, supported an order that the estate trustee be passed over.[8]

The court referenced the case of Chambers Estate v. Chambers, which stated that a court should not lightly interfere with a testator’s choice of trustee, and an estate trustee may only be removed in the face of “the clearest of evidence”.[9]

The Codicil

The Respondent doubted the validity of the codicil executed by Robert in 2007; however, she did not provide any evidence to support this suspicion. The court found the codicil to be valid as it complied with the requirements under s. 4(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26., and Elizabeth was present for the execution.[10]

Accounting

The court found that the Respondent was required to provide an informal accounting from the date of Robert’s death since the estate’s administration had not been completed and there was little known information regarding Robert’s assets aside from the Cottage Property.

Costs

Due to the Respondent’s reprehensible behavior in her capacity as estate trustee, the court awarded full indemnity costs against the Respondent, to be paid by her personally, in the amount of $14,564.56. The remainder of the costs were made payable out of Robert’s estate.[11]

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[1] MacKinnon v. MacKinnon, 2025 ONSC 2426 [MacKinnon]

[2] MacKinnon at para 8.

[3] Mackinnon at para 7.

[4] Mackinnon at para 10.

[5] Mackinnon at para 13.

[6] Ibid at para 17.

[7] Ibid at para 18.

[8] Ibid at para 24.

[9] Ibid at para 20.

[10] Ibid at para 34.

[11] Ibid at para 44.