When an estate is being administered, it may be necessary to apply to the court for directions or other relief, such as a passing accounts. Often one estate trustee will provide the necessary evidence, even if more than one person has been appointed to administer the estate. An interesting question that may arise when an estate has multiple estate trustees is whether a party with an interest in the estate, such as a beneficiary, could compel more than one estate trustee to give evidence or undergo examination prior to an estate-related application.
This question recently arose in Widney Estate (Re), 2025 ABKB 311. Justice Lema of the Court of King’s Bench of Alberta asked: “Should a co-executor be directed to submit to questioning by one or more beneficiaries on … estate-related applications where the estate’s evidence to date has come via affidavit from the other co-executor?”
In this case, the estate was being administered by two executors – an “active” executor and a “sideline” executor. The active executor swore affidavit evidence in support of two applications brought by the estate, and also swore an affidavit in response to an application brought by one of the beneficiaries. The beneficiary then applied to question the “sideline” executor, arguing that he may have documents or information not included in the “active” executor’s evidence – essentially suggesting that the estate’s evidence could be incomplete. In response, the estate argued that the affidavit evidence already provided contained all of the required information, and that any further information could be obtained by cross-examining the active executor.
The application to question the sideline executor was dismissed. To grant such relief and compel a co-executor to give evidence as such, Justice Lema held that the applicant would have to show reason to doubt that the evidence already submitted was complete, and also address why any information shortfall could not be satisfied by cross-examining the executor who had already given evidence.
In reaching this decision, Justice Lema relied on the common law principle of unanimity, which requires executors to act unanimously when administering an estate. On this point, the court quoted Kaptyn Estate (Re), 2009 CanLII 19933 (ON SC), where Justice Brown confirmed that “if there are several executors of a will, their decisions must be unanimous; one alone is not entitled to act on behalf of the others in connection with the administration of the estate.” In light of this principle, Justice Lema held that the active executor gave her evidence on behalf of the estate and both executors collectively.
The application was dismissed, as there was no evidence indicating that the executors did not act unanimously in assembling the affidavit evidence put before the court, or that they did not jointly approve of that evidence. There was also nothing to indicate that the estate’s evidence was incomplete, that either executor conducted estate activities on their own, without giving notice to their co-executor, or that the sideline executor had undisclosed documents or information. Moreover, there was no basis to conclude that any shortfall in the disclosure or production provided by the estate could not be addressed by examining the active executor.
Other reasons were also given for not granting the relief sought, including the notion that opening the door to the examination of co-executors would “most likely result in duplication, delay and wasted resources.” The applicant also failed to cite any case law which established “a right to examine other executors (or trustees) where one executor (or trustee) has provided evidence on behalf of an estate (or trust) or otherwise bearing on estate issues.”
Lastly, Justice Lema compared the situation before him to the examination of witnesses on behalf of a corporation. Citing the New Brunswick Court of Appeal’s decision in Montreal Trust Co. of Canada v. Occo Developments Ltd., 1997 CanLII 9557, Justice Lema observed that an additional corporate witness can usually only be examined if the first witness “has refused to answer questions, refused or failed to satisfactorily inform himself or herself in preparation for the examination for discovery, refused to give undertakings on matters that the witness is then and there unable to provide, or is an unsuitable witness.” As the active executor in Widney Estate had not yet been examined on behalf of the estate, and had not engaged in any conduct like that described by the New Brunswick Court of Appeal, there was no basis to require the sideline executor to give evidence on behalf of the estate.
Should this issue arise in Ontario in the future, it seems plausible that the court would follow Justice Lema’s decision and apply the principle of unanimity, so long as the estate trustees administering the estate are not exempted from the requirement to act unanimously, for example through a will clause. Unless there is a demonstrable problem with the estate’s evidence given by one estate trustee, compelling a co-estate trustee to undergo examination would arguably be an unwarranted fishing expedition, resulting in increased costs, delay, and distress, plus duplication.
Thank you for reading and have a fantastic day!
Ian.