Last year, Ian Hull blogged on James Estate (Re), 2024 ONCA 623, a decision that ultimately made its way to our Top Wills & Estates Cases of 2024. In this significant ruling, the Ontario Court of Appeal has clarified the inherent jurisdiction of courts in the appointment of estate trustees, and has confirmed that the Superior Court of Justice has the inherent jurisdiction to deny such applications, even if unopposed.
The case revolves around a lower court decision, where the court exercised its discretion to deny a disbarred lawyer’s application to be appointed as the estate trustee. This situation arose in the context of a will that was executed in September 2022, which named the testator’s friend as executrix and trustee, with the disbarred lawyer witnessing the signing. The will’s backsheet listed the lawyer as a consultant, raising concerns due to his revoked law license. After the testator’s death in April 2023, the named trustee renounced her right to the appointment, and the beneficiaries consented to the lawyer’s appointment as estate trustee.
In July 2023, the lawyer applied for a certificate of appointment, but the application was referred to a judge due to concerns with the application and the need for judicial overview. The judge questioned whether the lawyer was engaging in unlicensed legal practice and requested evidence to the contrary, which the lawyer failed to provide. While the judge clarified that nothing prevents a disbarred lawyer from acting as an estate trustee, there were nonetheless concerns about the lawyer’s suspected unlicensed practice. Consequently, the judge dismissed the application in November 2023, citing the need to uphold public confidence in the justice system.
The Ontario Court of Appeal supported the lower court’s decision, emphasizing the judge’s discretion and the lack of error in weighing the competing considerations. The appeal court highlighted concerns about the lawyer’s professional history and involvement in the will’s execution despite his disbarment. The court also noted the lawyer’s failure to address the judge’s concerns or clarify his role in the estate’s management. The appeal court rejected the lawyer’s arguments, including claims of bias and improper focus on his disbarment. It found no evidence of bias and noted that the judge’s concerns were based on the lawyer’s activities related to the estate.
The decision was appealed to the Supreme Court of Canada, where last month the court dismissed the application for leave to appeal, thereby upholding the ruling of the Ontario Court of Appeal, as well as the lower court’s decision.
Thank you for reading and have a great long weekend.