While the removal of Estate Trustees pursuant to section 37 of the Trustee Act,[1] has been available for quite some time now, within the past few years (particularly 2022 onward) there seems to have been a discernible rise in scrutiny of Estate Trustees and an increase in applications to the Ontario Superior Court.
I will endeavor to lay out some of the foundational authorities one ought to consider when contemplating a removal proceeding.
Legislation
As mentioned above, pursuant to section 37 of the Trustee Act, the court may remove an Estate Trustee and appoint another person in their place where it is no longer possible for them to abide by their duties in an impartial and objective manner. Section 37 holds,
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.
Caselaw
There are a number of caselaw authorities, tests and factors which may be considered for the removal of an Estate Trustee; however, many of these decisions are often qualified by the presiding justice as being non-exhaustive.
In the appellate decision of Gonder v Gonder Estate,[2] Epstein & Rouleau JJ.A, speaking for the Ontario Court of Appeal, held that three objectives that ought to be addressed when considering the removal of an Estate Trustee are as follows:
(1) ensuring the orderly administration of the estate in the interests of the beneficiaries;
(2) recognizing the plight of the respondents; and
(3) providing for the timely resolution of the disputes concerning the estate.[3]
In a more recent application of section 37(1) of the Trustee Act, Justice Gomery in the decision of Kasanda v Sartarelli,[4] articulates a similar test although it is derived from a different line of jurisprudence. Citing from the highly regarded decision of Radford v Radford,[5] where Justice Quinn canvassed the principles on an application to remove an Estate Trustee, to be later summarized in Johnston v Lanka,[6] the Court asserts the following in respect to Estate Trustee removal:
(1) the court will not lightly interfere with the testator’s choice of estate trustee;
(2) clear evidence is required that removal of the trustee is necessary;
(3) the court’s main consideration is the welfare of the beneficiaries; and
(4) the estate trustee’s acts, or omissions must be of such a nature as to endanger the administration of the trust.[7]
From Justice San Filippo in the decision of La Calamita v La Calamita,[8] which stands out as one of the most exhaustive list of factors to date, he goes on to hold the following when considering Estate Trustee removal:
(a) The court will remove the estate trustee only if doing so is clearly necessary to ensure the proper administration of the trust.
(b) The court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee. The wishes of the testator will generally be honoured “even if the person chosen is of bad character”.
(c) A court should remove an estate trustee only on the “clearest of evidence” and should be reluctant to pass over a named estate trustee unless “there is no other course to follow”.
(d) Even if an estate trustee has not executed their functions perfectly or ideally, “that is not the test”. The test is whether the estate is likely to be administered properly in accordance with the fiduciary duty of the trustee and for the benefit of the beneficiaries.
(e) Friction alone between co-executors is not itself reason for removal. For friction to be the basis for removal, it must rise to a level that prevents the proper administration of the estate.
(f) Passing over an executor is an “unusual and extreme course”. It has been described as an “extreme remedy” and one of “last resort”.
(g) Past misconduct may justify removal if that misconduct is likely to continue in the future. Removal is not intended to punish, but to protect the Estate assets and the interests of the beneficiaries.
(h) The Court’s main guide should be the welfare of the beneficiaries.[9]
[footnotes omitted]
Taken together, these authorities underscore the careful balancing act Courts undertake when considering the removal of an estate trustee. While section 37 of the Trustee Act grants broad discretion, the caselaw illustrates that removal is not merely a response to minor errors or interpersonal friction. Instead, the Courts consistently emphasize that any intervention must be justified by clear evidence that the trustee’s conduct endangers the proper administration of the estate and the interests of the beneficiaries. The jurisprudence also reflects a judicial respect for the testator’s intent: even where a trustee’s performance is imperfect, the threshold for removal remains high.
Final Remarks
For practitioners and beneficiaries alike, the key takeaway is the importance of early engagement, transparent communication, and meticulous record‑keeping. Trustees who act diligently and in good faith are unlikely to face removal, even if disagreements arise. Conversely, prospective applicants should recognize that the court will demand compelling evidence of mismanagement or risk to the estate before considering removal.
Ultimately, the law encourages resolution that preserves the integrity of the estate while safeguarding the interests of the beneficiaries. Removal should be thought of as a last resort, not the default solution.
For further readings on Estate Trustee removal, check out some of our other blogs:
Removal and Passing Over of Executors and Administrators | WEL Partners Blog
Removal Or Passing Over of Executor? | WEL Partners Blog
Renunciation & Intermeddling – Which Trustee Actions Cross the Line? | WEL Partners Blog
—
[1] Trustee Act, RSO 1990, c T.23, at section 37
[2] Gonder v. Gonder Estate, 2010 ONCA 172 (CanLII). (“Gonder Estate”)
[3] Ibid., at para 23.
[4] Kasanda v. Sartarelli, 2023 ONSC 4400 (CanLII). (“Kasanda”)
[5] Radford v. Wilkins, 2008 CanLII 45548 (ON SC)
[6] Johnston v. Lanka, 2010 ONSC 4124 (CanLII).
[7] Kasanda., at para 6.
[8] La Calamita v. La Calamita, 2024 ONSC 4219 (CanLII). (“La Calamita”)
[9] La Calamita, at para 95.
Menu
Written by: Grant Swedak
Posted on: December 22, 2025
Categories: Commentary, WEL Newsletter
While the removal of Estate Trustees pursuant to section 37 of the Trustee Act,[1] has been available for quite some time now, within the past few years (particularly 2022 onward) there seems to have been a discernible rise in scrutiny of Estate Trustees and an increase in applications to the Ontario Superior Court.
I will endeavor to lay out some of the foundational authorities one ought to consider when contemplating a removal proceeding.
Legislation
As mentioned above, pursuant to section 37 of the Trustee Act, the court may remove an Estate Trustee and appoint another person in their place where it is no longer possible for them to abide by their duties in an impartial and objective manner. Section 37 holds,
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.
Caselaw
There are a number of caselaw authorities, tests and factors which may be considered for the removal of an Estate Trustee; however, many of these decisions are often qualified by the presiding justice as being non-exhaustive.
In the appellate decision of Gonder v Gonder Estate,[2] Epstein & Rouleau JJ.A, speaking for the Ontario Court of Appeal, held that three objectives that ought to be addressed when considering the removal of an Estate Trustee are as follows:
(1) ensuring the orderly administration of the estate in the interests of the beneficiaries;
(2) recognizing the plight of the respondents; and
(3) providing for the timely resolution of the disputes concerning the estate.[3]
In a more recent application of section 37(1) of the Trustee Act, Justice Gomery in the decision of Kasanda v Sartarelli,[4] articulates a similar test although it is derived from a different line of jurisprudence. Citing from the highly regarded decision of Radford v Radford,[5] where Justice Quinn canvassed the principles on an application to remove an Estate Trustee, to be later summarized in Johnston v Lanka,[6] the Court asserts the following in respect to Estate Trustee removal:
(1) the court will not lightly interfere with the testator’s choice of estate trustee;
(2) clear evidence is required that removal of the trustee is necessary;
(3) the court’s main consideration is the welfare of the beneficiaries; and
(4) the estate trustee’s acts, or omissions must be of such a nature as to endanger the administration of the trust.[7]
From Justice San Filippo in the decision of La Calamita v La Calamita,[8] which stands out as one of the most exhaustive list of factors to date, he goes on to hold the following when considering Estate Trustee removal:
(a) The court will remove the estate trustee only if doing so is clearly necessary to ensure the proper administration of the trust.
(b) The court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee. The wishes of the testator will generally be honoured “even if the person chosen is of bad character”.
(c) A court should remove an estate trustee only on the “clearest of evidence” and should be reluctant to pass over a named estate trustee unless “there is no other course to follow”.
(d) Even if an estate trustee has not executed their functions perfectly or ideally, “that is not the test”. The test is whether the estate is likely to be administered properly in accordance with the fiduciary duty of the trustee and for the benefit of the beneficiaries.
(e) Friction alone between co-executors is not itself reason for removal. For friction to be the basis for removal, it must rise to a level that prevents the proper administration of the estate.
(f) Passing over an executor is an “unusual and extreme course”. It has been described as an “extreme remedy” and one of “last resort”.
(g) Past misconduct may justify removal if that misconduct is likely to continue in the future. Removal is not intended to punish, but to protect the Estate assets and the interests of the beneficiaries.
(h) The Court’s main guide should be the welfare of the beneficiaries.[9]
[footnotes omitted]
Taken together, these authorities underscore the careful balancing act Courts undertake when considering the removal of an estate trustee. While section 37 of the Trustee Act grants broad discretion, the caselaw illustrates that removal is not merely a response to minor errors or interpersonal friction. Instead, the Courts consistently emphasize that any intervention must be justified by clear evidence that the trustee’s conduct endangers the proper administration of the estate and the interests of the beneficiaries. The jurisprudence also reflects a judicial respect for the testator’s intent: even where a trustee’s performance is imperfect, the threshold for removal remains high.
Final Remarks
For practitioners and beneficiaries alike, the key takeaway is the importance of early engagement, transparent communication, and meticulous record‑keeping. Trustees who act diligently and in good faith are unlikely to face removal, even if disagreements arise. Conversely, prospective applicants should recognize that the court will demand compelling evidence of mismanagement or risk to the estate before considering removal.
Ultimately, the law encourages resolution that preserves the integrity of the estate while safeguarding the interests of the beneficiaries. Removal should be thought of as a last resort, not the default solution.
For further readings on Estate Trustee removal, check out some of our other blogs:
Removal and Passing Over of Executors and Administrators | WEL Partners Blog
Removal Or Passing Over of Executor? | WEL Partners Blog
Renunciation & Intermeddling – Which Trustee Actions Cross the Line? | WEL Partners Blog
—
[1] Trustee Act, RSO 1990, c T.23, at section 37
[2] Gonder v. Gonder Estate, 2010 ONCA 172 (CanLII). (“Gonder Estate”)
[3] Ibid., at para 23.
[4] Kasanda v. Sartarelli, 2023 ONSC 4400 (CanLII). (“Kasanda”)
[5] Radford v. Wilkins, 2008 CanLII 45548 (ON SC)
[6] Johnston v. Lanka, 2010 ONSC 4124 (CanLII).
[7] Kasanda., at para 6.
[8] La Calamita v. La Calamita, 2024 ONSC 4219 (CanLII). (“La Calamita”)
[9] La Calamita, at para 95.
Author
View all posts