A Court’s exercise of its discretionary authority to remove an executor under section 37(1) of the Trustee Act, R.S.O. 1990, c. T.23 is informed by the following principles:

1. The court will not lightly interfere with the testator’s choice of estate trustee
2. Clear evidence of necessity is required
3. The courts’ 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.

The case of Taetz v. Mikolajewski, 2023 ONSC 4635 is a reminder that while removal of an estate trustee is a serious matter[1] and Courts are therefore reluctant to interfere with a testator’s choice of estate trustee, trusteeship is by no means an inalienable right. Where the welfare of the beneficiaries is placed in jeopardy through the incompetence or misconduct of an estate trustee, a Court may well force a trustee to step aside.

In Taetz, the deceased named her son as estate trustee of her estate of which the deceased’s daughter was a residuary beneficiary. The deceased left a straightforward will that bequeathed her home and its contents to her daughter. Prior to the issuance of the application, the daughter had made efforts to obtain information about the estate and its administration but was met with resistance from the son. In fact, he only provided “meaningful information” regarding the administration of the estate only after the issuance of the application and one week before the hearing date.

In removing the son as estate trustee and appointing the daughter as the succeeding estate trustee, the Court found that,

• at the hearing, the deceased’s son disclosed for the first time that he had a tenant living in the deceased’s home paying below market rate;
• deficient accounting had been provided by the son and there was no evidence to support the values of his claimed repairs to the deceased’s home;
• the deceased’s son demonstrated that the animosity he shared with his sister interfered with his duties as estate trustee;
• the only estate asset remaining was the uninsured house; and
• the deceased son had not been dishonest and forthright in his handling of the estate administration.

Thanks for reading.

Aaron Chan

[1] Di Santo v. Di Santo Estate, 2022 ONCA 671 at para. 8.