There are often cases where a testator will appoint multiple people to act jointly as their estate trustees. For example, the testator may have chosen to appoint all her children, or siblings.
Some of the main duties of an estate trustee include: acquainting oneself with the nature and circumstances of the trust property, ascertaining the condition of the estate, ascertaining the value of estate assets, and undertaking an inventory of the estate.
It should come as no surprise that there are many cases where co-estate trustees have difficulty working together, especially if one or more of the estate trustees refuses to perform their duties.
One remedy that is available in these cases is to apply for a court order removing one or more people from their role as an estate trustee. The courts have the jurisdiction to remove someone from their role as an estate trustee in accordance with section 37 of the Trustee Act.
Lord Blackburn, in an old English case called Letterstedt v. Broers (1884) outlined the principles for the court to follow when deciding whether or not to remove an estate trustee. The caselaw has developed over the years and has provided a clear interpretation on these principles. The case of Johnston v. Lanka, 2010 ONSC 4124 states the principles to be as follows:
1. The court will not lightly interfere with the testator’s choice of estate trustee;
2. Clear evidence of necessity is required;
3. The Court’s main consideration is the welfare of the beneficiaries; and
4. The Estate Trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.
Recent cases, such as Letourneau v. Summers as Estate Trustee, 2022 ONSC 4295 and Meuse v. Taylor, 2022 ONSC 1436 have reiterated and continued to uphold these principles.
Some examples of reasons that the court has used to remove an estate trustee include: unreasonable delay in administering the estate, inability of parties to administer the estate properly together, mismanagement of trusts, lack of adequate record keeping, and acting negligently or in bad faith with respect to the administration of the estate.
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