One of the more surprising realities of estate litigation is that an estate trustee cannot always represent the estate on their own. While estate trustees are responsible for administering estates, Ontario law draws a distinction between acting as an estate trustee in administration and acting on behalf of the estate in court proceedings.
The General Rule: An Estate Trustee Acting in Litigation Must Have Counsel
Rule 15.01(1) of Ontario’s Rules of Civil Procedure provides that “a party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.”
Estate trustees fall under the umbrella of Rule 15.01(1) as they technically act in a representative capacity. They are not advancing their own interests – they are acting on behalf of the estate and, therefore, on behalf of creditors, beneficiaries, and so on.
This requirement is grounded in practical concerns. Estate litigation often affects the rights of multiple beneficiaries and creditors, and courts have recognized the risk that a self-represented estate trustee may inadvertently prejudice those interests or fail to comply with procedural obligations (see, for example, Scarangella v. Oakville Trafalgar Memorial Hospital, 2024 ONSC 5518).
Hand in hand with this requirement, courts do not generally expect estate trustees to shoulder their own legal costs unless the court finds that they have acted unreasonably and/or for their own benefit as opposed to the benefit of the estate (see Geffen v. Goodman Estate, [1991] 2 SCR 353; 1991 CanLII 69 (SCC)).
When Is and Isn’t Counsel Required?
Rule 15.01(1) does not mean that an estate trustee must retain a lawyer for every aspect of an estate in which the courts are involved. Estate trustees routinely handle many administrative tasks, including applying for probate and filing tax returns. These activities do not constitute participation in a court proceeding and therefore do not engage Rule 15.01 (1).
The requirement arises where an estate trustee is participating in court proceedings in their capacity as estate trustee, even if they do not take a position and remain neutral. More importantly, Rule 15.01(1) kicks in where an estate trustee is seeking relief or defending the estate’s interests as a representative of the estate, rather than solely in their personal capacity.
The court also retains discretion to dispense with compliance with a rule where necessary in the interests of justice, which falls under the blanket Rule 2.03 permission that the court can dispense with compliance with a Rule in appropriate circumstances. However, courts have generally exercised that discretion cautiously where an estate trustee seeks to represent an estate without counsel. For a discussion of the potential consequences of an estate trustee refusing to retain counsel, see Ian Hull’s blog post on the matter here.
A Distinction Worth Remembering
The key distinction is whether the estate trustee is acting as an administrator or as a litigant.
An estate trustee administering an estate does not formally require counsel merely because they hold office. Their obligation to retain counsel when administering an estate does not extend beyond their duty to consult professionals – including lawyers and tax experts – so that they act prudently and responsibly. This duty can be exercised by the estate trustee with discretion, as needed. The only consequences of failing to retain counsel when administering an estate are that they take negligent actions and face personal liability for squandering funds.
However, once the estate becomes involved in court proceedings, and the estate trustee is acting in a representative capacity before the court, Rule 15.01(1) will ordinarily apply. In this situation, an estate trustee involved in litigation should assume that counsel is required. The strongest case for an exception under Rule 2.03 may arise where the estate trustee is the only person with a financial interest in the estate (i.e., is the sole beneficiary) and is, therefore, litigating only on their own behalf. That said, as the interests of beneficiaries, creditors, dependents, or other interested parties become engaged, the likelihood that the courts will require counsel for the estate trustee increases substantially.
Takeaways
Many estate trustees assume that because they have authority to administer the estate, and to take legal actions on behalf of the estate – such as filing taxes and selling real property – they also have authority to represent the estate in court as a self-represented litigant. It can also seem like an attractive option when a claim against an estate appears meritless, and estate liquidity is restricted. However, before commencing or responding to a court proceeding on behalf of an estate, trustees should carefully consider whether Rule 15.01(1) applies – otherwise, they may inadvertently cause delays, excessive costs, and unnecessary conflict with not only the beneficiaries, but also with the courts.
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