Freezing Estate Assets in Ontario When You Fear Dissipation

If you are a beneficiary and think estate assets are being sold, moved or hidden, waiting can feel risky. Ontario law has several tools, but each one fits a particular situation and none is automatic.

This article describes the tools the law provides and how they generally work. An injunction or urgent order depends on the facts and the evidence, so speak with a lawyer quickly if you believe assets are at risk.

Start with the facts you can show

A court acts on evidence, not suspicion. Notes about what you have seen, such as listings, transfers or missing items, are more useful than a general worry. Be careful about how you got any information.

Also confirm your standing. Anyone who appears to have a financial interest in the estate may object before a certificate of appointment of estate trustee is issued, by filing a Notice of Objection (Form 75.1) and stating the nature of their interest and of the objection.

Holds on distribution

In a dependant support claim, the court may suspend the administration of the deceased's estate, in whole or in part, for as long and to the extent it decides. Once a personal representative has been served with notice of a dependant support application, they must not distribute the estate until the court has disposed of the application.

There are exceptions: distribution is allowed if everyone entitled to apply consents or the court orders otherwise. These holds apply to dependant support claims, so they help only if you qualify as a dependant.

Protecting land

If your case is about an interest in land, a certificate of pending litigation (CPL) may be relevant. Starting a proceeding about an interest in land is not notice to non-parties until the court issues a CPL and it is registered. It can be registered under either the Land Titles Act or the Registry Act.

A CPL can be discharged. The court may discharge it if the claimant claims money instead of the land interest, has no reasonable claim to the land interest, or does not prosecute the proceeding with reasonable diligence. It may also discharge it if another form of security adequately protects the claimant, or on any other just ground.

Oversight of the person in charge

• Accounts: a court will not require an executor or administrator to account unless a person interested in the estate or a creditor asks, so a beneficiary can apply to compel accounts.
• Findings: on a passing of accounts the judge may inquire into any complaint by a person interested, and may order the executor, administrator or trustee to pay damages or other sums to the estate.
• Removal: the Superior Court of Justice may remove a personal representative and appoint another suitable person. Courts treat removing a trustee the deceased specifically chose as a serious matter.
• Relief: a trustee who acted honestly and reasonably may be relieved from personal liability for a breach of trust, though not for losses from investing trust property.

Where the concern is a lifetime transfer, such as a joint account with an adult child, the law presumes the child holds it on resulting trust for the parent's estate, and the child bears the burden of rebutting that. The question is the parent's actual intention at the time of the transfer.

Getting the court's attention, and next steps

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate matters. A party seeking an urgent Estates List hearing must complete an Urgent Hearing Request form through the Ontario Courts Public Portal.

• Collect proof of the assets and of any sale, transfer or listing.
• Write to the estate trustee and ask for information, and keep copies.
• Consider Form 74P to be notified of proceedings involving the estate.
• Ask a lawyer promptly whether an injunction, a CPL, an application for accounts or a removal motion fits your facts.
• Keep in mind that time limits can apply to claims, so do not wait.

Frequently asked questions