Can an Executor Be Removed in Ontario? Grounds and Process

Waiting months for an executor to do anything, or suspecting they are misusing estate money, is stressful. Many beneficiaries ask whether they can simply have the executor replaced. The short answer is that the court can do it, but it does not happen easily.

This article walks through the grounds, the court tools available, and the practical steps to consider. Your situation turns on its facts, so speak with a lawyer before starting a court process. In Ontario, an executor is formally called an estate trustee.

What the court can do

Under the Trustee Act, the Superior Court of Justice may remove a personal representative (executor or administrator) on any ground on which it may remove any other trustee, and may appoint another proper person in their place.

The court can also deal with the certificate itself. On the application of a person with a financial interest in the estate, it may revoke a certificate of appointment of estate trustee. It may do so if the certificate was issued in error or because of a fraud on the court, if the appointment is no longer effective, or for any other reason.

Why courts are cautious

A will-maker chose their estate trustee for a reason. The Court of Appeal for Ontario has said that removing estate trustees whom the deceased specifically chose is a serious matter, because it intrudes on the deceased's intention.

That means being unhappy with how slowly things move, or with a personality clash, is unlikely to be enough on its own. Evidence matters more than feelings. Records showing missed duties, unexplained transfers or refusal to give information are far more useful than general complaints.

Tools short of removal

Before asking for removal, consider whether a lesser step solves the problem. A person with a financial interest in an estate, such as a beneficiary, may move for orders for assistance. These include orders requiring the estate trustee to file a statement of estate assets, give further particulars, or pass accounts.

On an application to pass accounts, the estate trustee must file the verified estate accounts (Form 74.43), a copy of the certificate of appointment and a copy of the latest judgment, if any. This puts the trustee's handling of the estate under the court's review.

Compensation is a common source of disputes. A trustee is entitled to a fair and reasonable allowance for their care, pains and trouble and the time spent, as allowed by a judge, who may fix it when the accounts are passed. That does not apply where the will or trust fixes the allowance. A trustee who is a lawyer and provides necessary professional services may have the allowance increased accordingly.

A trustee may take compensation before accounts are passed only in three cases: all persons with a vested or contingent interest agree (if they are sui juris), the court approves, or the will allows it. If you see payments to the trustee with none of these in place, ask about it.

If no certificate has been issued yet

Timing matters. At any time before a certificate of appointment of estate trustee is issued, anyone who appears to have a financial interest in the estate may file a notice of objection (Form 75.1), stating the nature of their interest and of the objection.

• A notice of objection expires three years after it is filed, unless the objector withdraws it or the court orders it removed.
• The applicant serves a notice to objector (Form 75.3). If the objector does not serve a notice of appearance (Form 75.4) within 20 days after that service, the application goes ahead as if no objection had been filed.

What to do next

• Write down what has gone wrong, with dates, and keep emails and letters.
• Ask the trustee in writing for an update and for the estate's assets and accounts.
• Confirm that you have a financial interest in the estate, since that is what lets you apply.
• Watch the 20-day response period if you are served with a notice to objector.
• Speak with a lawyer about whether to seek orders for assistance, a passing of accounts, or removal.

Frequently asked questions