When there is a Last Will and Testament the question of who is going to act as Estate Trustee is usually fairly straightforward, with the Will typically naming an individual to such a role. In the event the individual who is originally named as Estate Trustee is unable or unwilling to act, the Will often provides for an alternate individual to be appointed. But what happens when the Will does not name an Estate Trustee or an individual dies intestate? Who gets to be the Estate Trustee under such a circumstance?

The order of priority for who gets to act as Estate Trustee when there is no one appointed is governed by section 29(1) of the Estates Act, which provides:

“Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,

(a)  the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;

(b)  the next of kin of the deceased; or

(c)  the person mentioned in clause (a) and the next of kin,

as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.”

Although the court retains the power to select amongst this group as it “thinks fit”, generally speaking the individual entitled to be appointed as Estate Trustee is the Deceased’s spouse followed by their next of kin (or some combination of these individuals). Section 29(3) of the Estates Act contemplates that the right of these individuals to be appointed as Estate Trustee is not absolute, with the court having the ability to select a different person if it thinks fit. The position of a majority of the beneficiaries can also be taken into account in selecting the individual under section 29(2).

Thank you for reading.

Stuart Clark

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