Can an Executor With Dementia Be Replaced in Ontario?

When the person named as executor starts to decline, the rest of the family is often stuck. The estate still has to be dealt with, but the person in charge may not be able to manage the work or understand what is going on.

Ontario law has several ways to deal with this. Which one fits depends on whether the executor has begun to act, whether there are other executors, and what the will says. This article explains the main options in general terms.

Start by asking whether the executor has begun to act

A person named as estate trustee in a will does not have to act. If a named executor renounces probate, their rights in respect of the executorship wholly cease, and administration passes as if they had never been appointed.

Renouncing uses Form 74G (Part A), and a probate application must include a renunciation from every living named estate trustee who has not joined the application. Whether a person with dementia can validly sign a renunciation depends on their capacity at the time, which is a question to raise with a lawyer.

If a named executor outlives the person who made the will but dies without having taken probate, administration passes as if no executor had been appointed.

Removal by the court

The Superior Court of Justice may remove a personal representative on any ground on which it may remove any other trustee, and may appoint another proper person in their place. Any person interested in the estate may apply, and so may an executor who wants to be relieved.

Medical information and evidence of what has or has not been done for the estate are usually important.

An executor who has already started acting cannot retire by deed. The Trustee Act procedure for retiring by deed does not apply to executors or administrators, so an executor who wants to step down must apply to court.

Other routes that may fit

• Other executors: the powers of several personal representatives vest in the survivor or survivors unless the will provides otherwise.
• Forcing a decision: a person with a financial interest may bring a motion for an order requiring someone to accept or refuse appointment as estate trustee. The court may also summon a named executor to prove or refuse to prove the will, and if they do not appear their right to the executorship wholly ceases.
• Replacement under the will: where a named estate trustee cannot act and a replacement is needed, Rule 74.06 governs a certificate of appointment of succeeding estate trustee with a will, and it requires a Form 74G renunciation from every living named estate trustee.
• Administration by family: where the named executor refuses to prove the will, the court may grant administration to the spouse, the next of kin, or both. The persons entitled, or a majority of those resident in Ontario, may ask that another person be appointed.

If the estate is stalled, any person who appears to have a financial interest may apply for directions, and the court may direct that an estate trustee during litigation be appointed and file security.

Keeping an eye on the estate in the meantime

Estate trustees must keep accurate records of the estate's assets and transactions. A person with a financial interest may move for an order requiring the estate trustee to file a statement of the nature and value of the estate's assets, give further particulars, or pass accounts. These motions may generally be made without notice, except a motion for further particulars, which requires 10 days' notice to the estate trustee.

A beneficiary is an interested person who can compel accounts. Asking for accounts can show whether an executor in decline is still managing the estate properly.

What to do next

• Find the will and confirm who is named, and whether there is more than one executor.
• Find out whether probate has been applied for or a certificate of appointment issued.
• Gather any medical or other information about the executor's condition.
• List the estate's assets and any deadlines or bills that are being missed.
• Talk to a lawyer about whether renunciation, removal, directions or another route fits your situation.

Frequently asked questions