Being an estate trustee is a significant responsibility – one that is often significantly more difficult and thankless than many people realize when they first agree to act in this capacity. One challenge is that key information is often hidden at first glance – and so a prospective trustee will agree to take on a job before they realize what they are getting themselves into.
For complex estates, or those which become subject to litigation, the period of administration can unfortunately last years. And while estate trustees are entitled at law to compensation for their efforts, this undertaking can be a source of considerable stress – for many, it is simply not worth it.
So, can this responsibility be escaped? For individuals who have not yet taken action, the answer is yes. An individual can simply decline to act. Doing so is known as renunciation – the formal rejection of the testamentary role.
The problem, however, is that often by the time that an estate trustee realizes the scale and/or difficulty of the role which they have assumed, it can be much more difficult to be released from this responsibility. In legal terms, the estate trustee has ‘intermeddled’.
In Chambers Estate v. Chambers, 2013 ONCA 511, the Court of Appeal held that unfortunately for those who would seek to renounce their trusteeship midway through, such an escape “is generally not available if a party has already ‘intermeddled’ with the estate.”
Intermeddling takes place where a person not formally recognized by the Court to act for an estate does so anyway. This can be the named estate trustee who has not yet received a Certificate of Appointment, or another person entirely – a family member or acquaintance who takes it upon themselves to assist with the estate.
But the key question remains – at what point have they ‘intermeddled’?
This is a question of degree, subjective to the circumstances of an estate. For individuals who seek to renounce their role, it may be the case that they have only had tenuous involvement with the administration of the estate. However, for a some estates, even basic acts, such as moving a Deceased person’s property or assisting with the payment of estate administration taxes may be considered to meet that threshold, as the Ontario Superior Court of Justice held in Dueck v. Chaplin 2015 ONSC 4604.
There is not a formal test for ‘intermeddling’ in the administration of an estate. However, for prospective estate trustees, be forewarned – once one begins to act in this capacity, exiting the role can be difficult. Accordingly, acting on behalf of an estate should be done with the caution and consideration that such a responsibility requires.
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