If a will appoints a person to act as executor (or estate trustee) of the deceased’s estate, the individual named is not legally required to accept the appointment. As noted by the Ontario Court of Appeal in Cahill v Cahill, 2016 ONCA 962, if the person appointed by the deceased is “unable, unwilling or incapable of accepting the responsibility, it is open to him or her to renounce the appointment.”

An interesting question that comes up occasionally is whether an individual who has renounced may subsequently change their mind. This issue is not addressed in the Rules of Civil Procedure, RRO 1990, Reg 194, and case law addressing the retraction of renunciations also tends to be scarce. However, this issue came up in two cases last year – Hunt v. Hunt, 2023 SKKB 190 and Soo Estate, 2023 BCSC 762.

In Hunt, the deceased’s will appointed both of her children to be executors of her estate, but her daughter renounced the appointment before probate was granted. The daughter then changed her mind, unhappy with how her brother was handling the estate, and applied to the court to retract her renunciation. The court allowed the application since probate had not yet been granted, even though there were warning signs that animosity between the siblings could impact the administration of the estate ifthe renunciation were retracted.

Despite the outcome in Hunt, it is not a foregone conclusion that a renunciation can be retracted so long as probate has not yet been granted, as demonstrated by the court’s decision in Soo Estate. Similar to Hunt, the executor named in the deceased’s will renounced the appointment, but then applied to the court to be appointed administrator. While the applicant claimed that his renunciation had been conditional on his sister being appointed administrator in his place, Justice Francis concluded that the renunciation had been final since there was nothing in the original document to indicate that the renunciation was conditional. The court then rejected the applicant’s request to be appointed administrator in light of the fact that the applicant and the deceased were embroiled in several lawsuits when the deceased passed away. If the applicant were appointed to administer the estate, he would be acting on behalf of both parties to the litigation, resulting in a conflict of interest.

Should a person find themselves wanting to withdraw a renunciation, it is advisable to keep the following in mind:

• A renunciation can only be withdrawn with court approval.
• While it appears more likely that a court will permit a renunciation to be withdrawn before probate is granted, the court may still refuse to grant this relief, depending on the circumstances.
• When applying to withdraw a renunciation, an applicant ought to address:
  • why the applicant changed their mind,
  • why this relief is in the best interests of the estate or the parties who have an interest in the estate, and
  • how any impact on the executorship will be minimized if the relief sought is granted, particularly if another executor has already been appointed.
• If the renunciation was conditional, this information can be included in the application, but the court is unlikely to consider this point unless the renunciation document expressly states that the renunciation isconditional. Even then, it is improbable that such a statement would compel the court to withdraw a prior renunciation – at most, this would simply be a factor for the court to consider.

Lastly, while it is clear that a renunciation can be withdrawn, it appears that cases where this relief is granted are the exception, not the norm. As noted by the court in McKee Estate, 2003 BCSC 466, “retraction of a renunciation by an executor is only reluctantly permitted by the court in very exceptional circumstances.” 

Thank you for reading, and have a great day! 
Ian.