Time Limits to Challenge an Executor in Ontario: What to Know

You may suspect that an executor has mismanaged an estate, and you want to know how long you have before you lose the right to do something about it.

The exact time limit depends on the kind of claim and when you learned of the problem, so it is not something to guess at. This article sets out the routes available and why acting early matters.

Why there is no single answer

Different steps have different timing. A notice of objection on a passing of accounts has its own objection period. A claim for breach of trust, a removal application and a creditor's claim are different proceedings. A lawyer can confirm which time limits apply and when they started to run on your facts.

If you think a deadline may be close, get advice quickly rather than waiting for the estate to wrap up.

The standards an executor is held to

An estate trustee investing trust property must exercise the care, skill, diligence and judgment that a prudent investor would exercise. There is no fixed list of approved investments.

A trustee who relies on investment advice is not in breach if a prudent investor would rely on it in comparable circumstances. The terms of the will also matter, because investment directions or limits in the will take priority.

Estate trustees must also keep accurate records of the estate's assets and transactions. Poor records can be a warning sign.

Routes open to a beneficiary

Grounds for replacing a trustee include refusing to act, being unfit or incapable of acting, conviction of an indictable offence, bankruptcy or insolvency, and remaining out of Ontario for more than twelve months. The Court of Appeal for Ontario has said that removing estate trustees chosen by the deceased is a serious matter.

Where the person removed is not the sole executor, the court need not appoint a replacement, and the estate may continue with the remaining representative or representatives.

How distributions can affect your options

After giving the required notice to creditors and once that period has expired, an estate trustee may distribute having regard only to the claims they then have notice of, and is not liable for claims they had no notice of. A creditor's or claimant's right to follow estate assets into the hands of the people who received them is preserved.

The court may also relieve a trustee, wholly or partly, who acted honestly and reasonably and ought fairly to be excused for a breach. That is one reason to gather clear evidence early.

What to do next

• Write down what you know and when you first learned of each concern.
• Keep every notice, letter and email from the executor.
• Ask the executor politely for records, such as statements and receipts.
• Check any notice of a passing of accounts for the objection period.
• See a lawyer promptly to confirm which time limits apply to your situation.

Frequently asked questions