In the realm of estate administration, it’s not unheard of for the executor of an estate to step down for health reasons. As noted in the latest edition of Macdonell, Sheard and Hull on Probate Practice, “[i]ncapacity through illness” is “sufficient grounds for removal” of an estate trustee.

Until recently, however, it appears that the courts had not been asked how an estate administration ought to proceed when an estate trustee requires a temporary leave from their duties and responsibilities for health reasons. This novel issue arose in Panchyshyn v Pietron, 2025 ONSC 2324. Faced with an application for her removal, the estate trustee provided a doctor’s note indicating that she was “currently experiencing significant health challenges that necessitate time away from her duties and obligations for proper rest and recovery,” and also recommended “a temporary leave for 12 weeks … to allow for the reduction of chronic symptoms significantly affecting her overall well-being.” The estate trustee submitted the letter in support of a request to adjourn or defer the removal application, refusing to consent to her removal for lack of capacity.

Since the absence of an estate trustee to preserve, protect, and manage the assets of an estate is a matter of urgency, Justice Myers did not grant the adjournment requested by the estate trustee, and instead directed an urgent hearing. No further medical evidence was adduced by the estate trustee at the hearing, as her physician was not available to give evidence and the estate trustee was unwilling to issue a summons out of fear it would impair her relationship with her doctor. The estate trustee also chose not to disclose her medical condition due to concerns about her safety and privacy.

Given these circumstances, Justice Myers directed the estate trustee to be removed on an interim basis due to her health issues, and also directed the application for the estate trustee’s removal to be scheduled.

Simply allowing the estate trustee to take a three-month break from the estate administration before the removal application was heard was not feasible in light of the estate trustee’s current duties and obligations. When the application was heard, a commercial farming property owned by the estate was listed for sale, plus a consent order which required the estate trustee to provide specific disclosure had been outstanding for months, in addition to the “normal fiduciary stewardship of assets expected of all executors, trustees and estate trustees.” Justice Myers was weary of leaving “the ship of the estate without a captain,” particularly given that selling the farm would “require more than the estate’s lawyer at the helm,” as the estate trustee would have to be available to deal with offers plus “communicate with the other beneficiaries.” In light of these circumstances, a three-month leave would create “a situation of urgent risk to the welfare of the beneficiaries,” necessitating the appointment of an interim estate trustee.

Acknowledging that “[t]here is no specific rule or statute authorizing the court to remove an estate trustee and appoint a caretaker on an interim basis,” Justice Myers nevertheless found several sources of authority to ground his order. In addition to the court’s power to make an interlocutory order under rule 50.13(6) of the Rules of Civil Procedure, Justice Myers also noted the court’s inherent jurisdiction and the authority bestowed by rule 74.15(1)(i) to make “an order providing for any other matter that the court directs.” Justice Myers did not rely on sections 5 and 37 of the Trustee Act, RSO 1990 c T.23, as these provisions only provide the court with jurisdiction to make a final order to remove a trustee.

The estate trustee’s temporary removal was not ordered to end after three months, as recommended by her physician. Instead, Justice Myers directed that she could resume the role pending the outcome of the removal motion, or further order of the court, whichever came first. During her leave, the applicants who sought the removal of the estate trustee were appointed as the interim executors and trustees of the estate.

The Take Away

Justice Myers’ decision in this case demonstrates the court’s “broad inherent and statutory powers to supervise and direct the management of an estate,” previously discussed by Justice Brown in Assaf Estate, Re, 2008 CarswellOnt 2842.

While an estate administration cannot be put on hold if an estate trustee has to deal with a health problem, luckily the estate trustee may be able to take a temporary medical leave. In that situation, the estate trustee ought to be aware that the court may put the onus on them to adduce evidence in support of their desire to “stay on.” It is also advisable to provide sworn medical evidence if an estate trustee requires a medical leave, and to even be prepared to have their physician give viva voce evidence, should the court direct a hearing on the issue.

Thank you for reading, and have a great day!

Ian.