Tag: Over

15 Aug

Renunciation, Resignation, Passing Over And Removal of Estate Trustees

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A recent decision of the Ontario Court of Appeal, Chambers Estate v. Chambers, 2013 ONCA 511, deals with the concepts of renunciation, resignation, removal and passing over of an estate trustee, and the sometimes subtle distinctions amongst the concepts.

There, a “renunciation” is defined as the “formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right.”   Renunciation is not available if a party has been appointed as estate trustee under a Certificate of Appointment, or has already intermeddled with the estate, or, put another way, where a party has dealt with an estate without having been formally recognized as estate trustee. Once an estate trustee has accepted the office, he or she cannot disclaim it by renunciation. In such a case, if the estate trustee no longer wishes to act, he or she must resign.

With respect to removal or passing over, the proper terminology is that an estate trustee is “passed over” before a Certificate of Appointment is issued, or before he or she has acted as estate trustee, and “removed” if a Certificate of Appointment is issued or he or she has intermeddled.

Thank you for reading.

Paul Trudelle

25 May

Passing Over an Executor

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In a recent decision out of the Supreme Court of B.C., Re Thomasson Estate, the Honourable Justice Gerow considered the circumstances where the court may pass over an executor, on an application by a co-executor/beneficiary.

The two Deceased (collectively referred to as the “Deceased”) had been married and had four children together, all of whom survived the Deceased. In their Wills, they named two of their children, as their executors, and directed the executors to distribute the estate to three of their four children. 

 

One son commenced this application to obtain an order that would pass over the other son as his co-executor for the Estates. The Applicant argued that it is necessary for the Estates to make a proper enquiry into the nature of inter-vivos transactions between the co-executor Respondent and the Deceased and such an inquiry must be made independent of the co-executor Respondent as he would be in a conflict of interest.

 

The co-executor Respondent opposed the Applicant’s application, and argued, amongst other things, that the court should not interfere with the testator’s right to nominate his or her executor and removing him would be prejudging the case.

In her decision Justice Gerow states:

In the circumstances of this case, it is my opinion that there is a perceived conflict of interest between the co-executor Respondent in his role as an executor and his interest in his personal capacity. If an action is instituted by the executors as a result of the transfer of the Property, it would be against the co-executor Respondent. In my opinion, the co-executor Respondent, in his capacity as executor, cannot attack the transfer of the Property to himself while at the same time maintaining, in his personal capacity, that the transfer of the Property was proper. By making such a finding I am not prejudging the case. I am simply of the view that, in the circumstances of this case, if an action is commenced as a result of the enquiries into the transfer, the co-executor Respondent cannot conscientiously act as a plaintiff in his capacity as an executor in a case where he will be the defendant.

B.C. legislation is unique compared to the legislation that governs estate trustees in Ontario; however, if a similar situation arose, an application seeking similar relief could be brought under Rule 14.05(3) of the Rules of Civil Procedure.

 

 

Rick Bickhram – Click here for more information on Rick Bickhram. 

10 Jun

Dealing with Estate Planning – Hull on Estates and Succession Planning Podcast #116

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Listen to Dealing with Estate Planning

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss dealing with estate planning and encouraging everyone to draw up a will.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

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30 Jan

Tips and Traps in Drafting – Hull on Estates #95

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Listen to Tips and Trips in Drafting.

This week on Hull on Estates, Suzana and Ian discuss tips and traps in the drafting of wills.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estate blog.

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18 Dec

The Core Issues Concerning Estate Taxes – Hull on Estates and Succession Planning Podcast # 91

Hull & Hull LLP Beneficiary Designations, Hull on Estate and Succession Planning, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to The Core Issues Concerning Estate Taxes

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the core issues surrounding estate taxes.

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30 Oct

Rolling Assets Into Trust – Hull on Estate and Sucession Planning Podcast #84

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Listen to Episode 84 – Rolling Assets Into Trust
This week on Hull on Estate and Succession Planning, Ian and Suzana further last week’s discussion on trusts and tax planning wills by illustrating the benefits of rolling over assets and being conscious of tainted trusts.

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