It has often been said that being an Estate Trustee is a thankless job. It is not uncommon for the full extent of the issues an Estate Trustee may face not being evident until they have begun to administer the estate, at which time issues such as financial liquidity or claims being made against the deceased individual may become known. But what happens if upon learning of these issues the Estate Trustee no longer wants to proceed with the role? Can the Estate Trustee simply step away from the role and renounce their appointment?
The Ontario Court of Appeal in Chambers Estate v. Chambers, 2013 ONCA 511, confirmed that once an Estate Trustee has “intermeddled” in the administration of an estate they may generally no longer renounce their right to be appointed as Estate Trustee and that a court order formally removing them as Estate Trustee is generally required. In coming to such a conclusion the court states:
“Renunciation is generally not available if a party has already “intermeddled” with the estate. Intermeddling is the term used to describe the acts of a person who deals with an estate without having been formally recognized as the estate trustee. As Kennedy J. explained, “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”: Stordy v. McGregor (1986), 1986 CanLII 5133 (MB QB), 42 Man. R. (2d) 237 (Q.B.), at para. 9. Even a slight act of intermeddling with a deceased’s assets may preclude an executor from afterwards renouncing: see Cummins v. Cummins (1845), 8 I. Eq. R. 723 (Ch.), at pp. 737-38. However, this rule has been applied with some flexibility: see e.g. Holder v. Holder, [1968] Ch. 353 (C.A.).” [emphasis added]
As a result of cases like Chambers Estate once an Estate Trustee has accepted the role and begun to administer the estate they may no longer simply walk away, with a court order typically being required formally removing them. Although what is considered “intermeddling” is of course open for debate, the possible requirement to obtain a court order removing you as Estate Trustee once you have taken any steps should cause any prospective Estate Trustee to think long and hard about whether they want to act as Estate Trustee before taking any step in the role. Otherwise if you should later change your mind and no longer want to act as Estate Trustee you may be required to obtain a court order removing you from the role.
Thank you for reading.