If a person is named as executor or estate trustee in a will, they are not required to accept the appointment – regardless of the deceased’s wishes, the named individual may renounce the role: see Cahill v Cahill, 2016 ONCA 962. Under such circumstances, if another party is applying for a certificate of appointment of estate trustee, it is common practice for the party who does not want to administer the estate to complete a renunciation using form 74G. If a person subsequently has a change of heart, however, a question arises – can the renunciation be revoked?
This question is not answered by any legislative provision in Ontario. While section 34 of the Estates Act, RSO 1990, c E.21 addresses renunciation, it simply confirms that “the person’s rights in respect of the executorship wholly cease” once they renounce. The question of whether a renunciation may be revoked has come up relatively recently in British Columbia and Saskatchewan, with mixed results, as noted in our Retracting a Renunciation blog post that was published last year. More recently, this issue was finally addressed by the Superior Court of Justice in Chieffallo v Blair, 2025 ONSC 3411.
In Chieffallo, a mother’s will named two of her children – a son and a daughter – as her estate trustees. Two and a half months after their mother died, the son renounced his appointment as estate trustee, but then changed his mind a few days later, after realizing that the will gave the estate trustees the power to “pay, transfer, and assign the residue of the estate” amongst the deceased’s family. A week after renouncing, he told his sister who was acting as estate trustee that he wanted to revoke his renunciation.
The daughter eventually applied to the court for directions on a variety of issues, including who should administer the estate. The son maintained that he ought to be able to revoke his renunciation, relying on MacDonald v. MacIssac and MacIssac, 1983 CanLII 283, a case in which the Nova Scotia Court of Appeal confirmed that a renunciation may be retracted. In his evidence, the son claimed that he would never have signed the renunciation if he had been aware that the estate trustees had been granted “great discretion over distributions,” and that he did not have the opportunity to obtain legal advice before renouncing the appointment. The son also asserted that he had been misled as to the purpose and consequences of the renunciation.
Although Justice Bell acknowledged that the court has the power to allow a renunciation to be retracted in a proper case, citing Feeney’s Canadian Law of Wills, the court did not allow the son to retract his renunciation for a variety of reasons. Recognizing that the son had two and half months to consult a lawyer between the time of his mother’s death and the execution of the renunciation, his claim that he did not have an opportunity to obtain legal advice lacked merit. He simply chose not to avail himself of the opportunity to consult with a lawyer. The court also observed that the son was not forced to sign the renunciation, and that there was evidence establishing that the son knew where the will was and could access it if he wanted to prior to signing the renunciation.
The court further rejected the son’s claim that he did not understand what he was signing when he completed the renunciation. Not only was the document short and clear, but if the son had genuinely not understood it, Justice Bell noted that he had the opportunity to consult with a lawyer and chose not to.
The son also argued, to no avail, that he could not renounce the appointment because he had intermeddled in the estate administration, having withdrawn money from his mother’s bank account at the direction of his sister and also paying a few bills. Justice Bell dismissed this argument, noting that the son had simply taken “minor steps to preserve the estate,” and that they did “not amount to deemed implied acceptance of the role of estate trustee.”
The Chieffallo decision confirms that a renunciation may be revoked in Ontario, and also illustrates that whether or not a renunciation may be revoked is a matter of court discretion. As held by the Nova Scotia Court of Appeal in MacDonald, “the Court is not bound to allow a retraction.”
Have a wonderful rest of your day,
Suzana.