Being an executor is a lot of work and a job that can be trying at times, particularly where disputes arise among the beneficiaries and/or the deceased’s family members in relation to the assets of the estate.
If you are appointed an executor and you do not wish to act, you may execute a Form 74.11 “deed of renunciation” through which you may effectively give up the rights and responsibilities that come along with the role. This form of renunciation, however, is generally only available before any steps have been taken by the executor to administer the estate or apply for probate. A named executor, who has taken active steps to administer an estate and/or apply for probate will, in most cases, be required to apply to the Court to be removed. Upon such application, the Court may order that he or she complete the job.
This is precisely what occurred in the recent case, Dueck v. Chaplin. The facts of that case are as follows:
Prior to his death, the deceased executed a Last Will and Testament that named his solicitor and his sister as the executors of his estate, and his children and his sister’s children as the beneficiaries of his estate.
The deceased had executed a prior Will many years earlier, in which he had named his wife as both the executor and sole residuary beneficiary of his estate.
At the time of his death the deceased was estranged from but still legally married to his wife, with whom he had been in the midst of contentious litigation regarding the division of their assets and custody of their children.
Following the deceased’s death, the deceased’s solicitor and the deceased’s sister, being the executors named under the deceased’s Last Will, began the process of gathering the deceased’s assets and paying the deceased’s outstanding liabilities. They also filed an Application for probate.
The deceased’s wife subsequently filed a Notice of Objection challenging the validity of the deceased’s Last Will.
Both the deceased’s solicitor and the deceased’s sister sought to renounce from their role of executor on the basis that they were conflicted given their involvement in the drafting and execution of the deceased’s Last Will. (The deceased’s solicitor had met with the deceased and had drafted the deceased’s Last Will, and the deceased’s sister had accompanied the deceased to his various meetings with the solicitor.)
Upon hearing the case, the Honorable Justice Goodman referred to paragraph 66 of the decision of the Ontario Court of Appeal in the Estate of Herbert Washington Chambers, deceased, 2013 ONCA 511 in which Justice Gillese stated:
Renunciation is generally not available if a party has already “intermeddled” with the estate. Intermeddling is the term used to describe the acts of a person who deals with an estate without having been formally recognized as the estate trustee. As Kennedy J. explained, “while executors may renounce at any time, (a right which is usually exercised before applying to probate) the courts have been reluctant to allow an executor to renounce after having intermeddled in the estate, or after having applied for probate”: Stordy v. McGregor (1986), 42 Man. R. (2d) 237 (Q.B.), at para. 9. Even a slight act of intermeddling with a deceased’s assets may preclude an executor from afterwards renouncing: see Cummins v. Cummins (1845), 8 I. Eq. R. 723 (Ch.), at pp. 737-38.
Following this precedent, Justice Goodman found that the executors’ intermeddling precluded them from renouncing, and that they were in fact the most appropriate individuals to propound the Last Will given their involvement in the drafting and execution of the testamentary document.
Thank you for reading.
Ian Hull and Laura Betts
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.