When creating an estate plan, it’s not unusual for a parent to want their children to work together as their estate trustees to administer the estate. While well-intentioned, such a decision could spell disaster for the timely administration of the parent’s estate, as demonstrated by the Court of Appeal’s recent decision in Kasanda v. Sartarelli, 2025 ONCA 27.

In this case, both of the testator’s children – a son and a daughter – were appointed in their father’s will to fill the role of estate trustee, along with the testator’s long-time solicitor. The will also divided the testator’s estate unevenly, with the son inheriting approximately $30,000, the amount left in a joint bank account, and the daughter inheriting a rental property that was sold for $280,000. The siblings began fighting after it became clear that the estate did not have enough money to pay its debts. The solicitor recommended that the debt be divided between the siblings proportionate to the monetary value of each child’s inheritance, which would have required the daughter to pay almost 90% of the debt. She objected, taking the position that dividing the debt this way would be unfair and inequitable. Administration of their father’s estate subsequently stalled for more than two years, and the estate’s tax return was filed late.

Upon learning of the estate’s liabilities, the daughter took the position that the estate should be larger, alleging that the son had improperly removed over $250,000 from the joint bank account in the months preceding their father’s death and also mismanaged the father’s financial affairs as his attorney for property. The daughter also claimed that the estate had an interest in a mortgage and promissory note that the son had executed in their father’s favour in 1995 and that the son, who had bought their father’s business years prior, did not pay the full purchase price for it and owed money to the estate. To learn more about the backstory, see Kasanda v. Sartarelli, 2022 ONSC 185 and Kasanda v. Sartarelli, 2023 ONSC 4400.

Each sibling ultimately applied to remove the other as estate trustee. After considering arguments from both, Justice Gomery of the Superior Court of Justice chose to remove the daughter. Given that “[t]he decision to remove an estate trustee is discretionary and entitled to a high level of deference on appeal,” it is not surprising that her decision was upheld. Typically, such appeals will only be granted “where the court below makes a clearly identifiable error in the application of the law, a material misapprehension of the evidence, or comes to a result that is clearly wrong.”

Justice Gomery’s decision was not impacted by any such error. She set out the correct test for the removal of an estate trustee, noting that a trustee is only to be removed “on the clearest evidence that there is no other course to follow.” There were also a number of reasons to remove the daughter rather than the son. For example, the evidence established that the daughter had preferred her own interests to those of the estate, given “her persistent belief that she had been treated inequitably during their father’s lifetime.” It was also clear that she had obstructed the proper administration of the estate by delaying the filing of the testator’s amended tax return and the payment of taxes, and had also generated unnecessary conflict and expense for her father’s estate. The daughter’s decision to unilaterally file the amended 2018 tax return in 2022, without consulting the other estate trustees, also demonstrated her failure to recognize that estate trustees are to act jointly. On these bases, Justice Gomery concluded that, if the daughter stayed on as estate trustee, she would continue to hamper the administration of the estate and further reduce the funds available to pay both the estate creditors and the beneficiaries.

In appealing Justice Gomery’s decision, the daughter raised an interesting, albeit technical, argument – that the appeal should be granted because the Superior Court indirectly endorsed an incorrect statement regarding the law of abatement. More specifically, the daughter argued that if her father’s former solicitor was incorrect about how the estate assets would abate, then it was not unreasonable for her to decline to pay the debts in the manner he suggested. While the Court of Appeal recognized that “the law of abatement in Ontario could benefit from a statement by this Court,” this ground of appeal was dismissed since Justice Gomery’s decision did not turn on abatement. Moreover, the Court of Appeal noted that the daughter’s argument about abatement at best “could fairly be characterized as ex post facto rationalization of her conduct.” In refusing to participate in the estate administration for two years, the daughter had claimed that it would be unfair to require her to pay 90% of the debt since her inheritance was a pittance compared to the cash and properties that the son had received from their father during his lifetime. She never raised the issue of whether the lawyer’s statement regarding the law of abatement was correct.

This case serves as a warning that appointing siblings to serve as estate trustees of a parent’s estate could be a recipe for trouble, particularly if there are lingering familial issues, such as sibling rivalries, perceived favouritism, or past unequal treatment. While parents are not legally required “to distribute their assets equally to their children, either during their lifetime or in a will,” as noted by the Court of Appeal, perceptions of hurt and unfairness that a child associates with their parent and sibling could ultimately stall the administration of the parent’s estate.

Thank you for reading, and enjoy the rest of your day,

Suzana.