The Court Appoints an Estate Trustee During Litigation (ETDL)

January 7, 2021 James Jacuta Litigation Tags: , 0 Comments

The Ontario Superior Court of Justice decision released on December 8, 2020, in the Estate of Klaczkowski, deals with a number of issues including when the court should remove an Estate Trustee and appoint a litigation Trustee. Two brothers disagreed on matters related to their mother’s estate, including division of proceeds of a TD Trading Account, a commercial property, and a safety deposit box (with $32,000 in $1,000 dollar bills). They were named in the will as Estate Trustees and beneficiaries. Justice Leiper reviewed the following points in regard to the court appointment of an Estate Trustee During Litigation:

  • Ordering the removal of an estate trustee is a decision not to be taken lightly and only where it is clearly necessary: Re Weil, 1961 CanLII 157 (ON CA), [1961] O.R. 888 at 889 (C.A.)
  • Friction between co-estate trustees may be a basis for a removal of both estate trustees where it impacts the decision-making process: Radford v. Wilkins (2008), 43 ETR (3d) 74, 2008 CanLII 45548 (S.C.J.) at paras 111-113;
  • A failure to properly keep records resulting in the need to make corrective disclosure is an aggravating factor in considering whether a trustee ought to be removed. Similarly, failure to consult with co-trustees is significant. Graham v. Benton, 2020 ONSC 6985 at paras. 156-157;
  • A testator’s choice of estate trustee should not be lightly interfered with, but the appointment of an ETDL is a “much less intrusive” remedy that exists where “parties’ duties as fiduciaries can be inconsistent with their ongoing litigation interests.” A court should consider the balance of convenience and, since the appointment of an ETDL is not an extraordinary remedy, “the court will favour appointment in the vast majority of cases unless the administration of the estate involved is particularly straightforward or simple”: Mayer v. Rubin, 2017 ONSC 3498 at paras. 24-36.

The Court ordered that –

  1.        An Estate Trustee During Litigation will be appointed for the estate, and
  2.        If the parties are unable to agree to the naming of the Estate Trustee During Litigation by February 1, 2021, they are to appear before March 1, 2021, to make submissions on an appropriate Estate Trustee During Litigation.

For more on Estate Trustees During Litigation please see the blog by Sydney Osmar: Appointing an Estate Trustee During Litigation.

Thanks for reading!

James Jacuta

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