How to Remove an Executor Who Is Stalling in Ontario

Waiting months with no updates from an executor is frustrating, especially when you are a beneficiary and cannot see what is happening. Many people ask whether they can simply have the executor replaced.

Removal is possible in Ontario, but it is a court step and courts do not take it lightly. This article explains the legal tools, who can use them, and what you can try first.

What the court can do

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

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. Delay or friction alone may therefore not be enough. What matters is the whole picture of how the estate is being handled, and that depends on the facts.

Removing the trustee versus revoking the certificate

These are two different tools, and people often mix them up.

Another point worth checking is whether the person is still validly the executor. Unless the will shows a contrary intention, gifts to a former spouse and their appointment as executor are revoked if the marriage ends after the will is made.

Steps to try before asking for removal

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. These steps often bring information to the surface without ending the trustee's role.

• Write to the executor with specific questions and a reasonable date for a reply.
• Keep a record of every request, response and missed commitment.
• Ask for a list of the estate's assets and for copies of accounts.
• If there is still no answer, ask a lawyer about a court motion for assistance or a passing of accounts.

Conduct you may want to raise

Whether conduct justifies removal depends on the facts. Concerns people commonly raise include long unexplained delay, refusing to share information, and mixing estate money with personal money.

Compensation is another sensitive area. An estate 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 a trustee is paying themselves early without one of these, tell a lawyer.

What to do next

Start by confirming that you have a financial interest, since that is what the court rules look for when you apply for orders or ask to revoke a certificate. Then gather the will, any certificate, and your written exchanges with the executor.

A lawyer can tell you whether your situation calls for a motion for assistance, a passing of accounts, an application to remove the trustee, or simple negotiation. A court may also appoint a replacement, so it helps to think about who would take over if the executor were removed.

Frequently asked questions