Estate Trustees play a critical role in administering an Estate. Their role can give them great decision making power. Yet this power can be abused. A conflict of interest may arise between the Estate Trustee in their role as representing the Estate and their personal interests. This conflict risks favouring their personal interests over the Estate, to which they owe  fiduciary obligations. Conflicts of interests, actual or potential, raise significant concerns. An application to remove a trustee may be warranted in circumstances where there are significant allegations made.

The Court in Borisko v Borisko, 2010 ONSC 2670 found it appropriate to grant a removal application where significant allegations aroused the distrust and hostility of the beneficiaries. In doing so, the Court in that decision stated that an application for removing a trustee was not a fact finding process.  In its reasons, the Court considered a number of allegations indicating a breach of duty or conflict of interest. The Trustee was alleged to have tried to buy shares from the beneficiaries when he knew they were valued at nearly twice what he offered. He was also alleged to have withheld this information from the beneficiaries. The Trustee was said to have refused to transfer the shares and dividends in a company to the family trust, but instead included the assets in the Estate to increase the Estate’s value and his compensation. These allegations, which were substantiated with evidence, were sufficient for the Court in this case to order the removal of the trustee.

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As has been previously blogged, the Court takes such an application very seriously. The Court will prioritize the welfare of the beneficiaries as the governing principle when considering whether to grant such an application. It will also consider whether the administration of the Estate will be delayed should the Estate Trustee remain in office. If the Estate Trustee is named in the Last Will and Testament, this will also be of some importance to the determination of whether to grant the application for removal.

The mechanism for removing an Estate Trustee is by recourse to section 37(1) of the Trustee Act. This section requires that the Court, when removing a trustee, appoint a replacement. The Court may also exercise its inherent jurisdiction to remove the Trustee without appointing a replacement. The authority to do so is confirmed by the Court of Appeal Decision, Evans v Gonder, 2010 ONCA 172 where it was held that no single provision or the Trustee Act, when read as a whole, ousted the inherent equitable jurisdiction of a Superior Court.

Thanks for reading.

Suzana Popovic-Montag