The case of Kwan v Nimigeon Estate, 2022 ONSC 6308 discusses the issues of removing an estate trustee when there is an intestacy.

The deceased died tragically in a motorcycle accident and did not leave behind a will, therefore his estate fell into an intestacy. The Succession Law Reform Act provides how an estate is distributed when the deceased does not have a will. In this case, the deceased did not have a spouse or any children, therefore his estate went to his parents.

The deceased’s father applied for a certificate of appointment of estate trustee of his son’s estate, however the deceased’s alleged common-law spouse sought to have him removed and replace him as the estate trustee. The court had to determine whether the father could be removed as estate trustee.

The court’s main guide when faced with a request to remove an estate trustee is the welfare of the beneficiaries. In making a decision, the court considers a number of factors, including:

• The removal should only occur on the clearest of evidence that there is no other course to follow;
• It must be shown that the non-removal of the trustee will prevent the proper execution of the estate; and
• The removal of an estate trustee is not intended to punish for past misconducts, rather it is only justified if past misconduct is likely to continue and the estate assets and interests of the beneficiaries must be protected.

Since the deceased died intestate, the threshold for removal is even higher, given that the testator has a generally unfettered discretion in terms of the choice of estate trustee and his or her wishes should be respected except in the clearest of cases.

The common-law spouse’s arguments to remove the father as estate trustee was based on the facts that he was previously deceitful in his application, that he was not competent because he did not have a good understanding of the deceased’s financial affairs, and that he may prefer his own interests to those of the estate’s creditors.

The court found that there was insufficient evidence of either claim against the father of the deceased to justify removal. More importantly, the father of the deceased had the consent of the beneficiaries to act as estate trustee. Since there was no compelling reason to remove the father as estate trustee, the court issued a certificate appointing him as estate trustee. However, he was also instructed to post a bond and pass his accounts within 12 months of his appointment.

We have seen on a number of occasions litigation being pursued because the deceased did not have a will. Issues such as who would be the estate trustee is just one of the many hurdles loved ones may have to overcome when a person passes away without planning their estate. It is never too late (or too early) to start thinking about estate planning and who would be the best person to manage your assets.

Thank you for reading.