Removing an Executor in Ontario: Court Grounds and Steps

When an estate drags on, or the executor stops answering your questions, it is easy to feel stuck. Beneficiaries often ask whether they can simply have the executor replaced.

Ontario courts can remove an estate trustee, but they do not do it lightly. This article explains the power the court has, how it tends to approach the request, and sensible steps to take before and during an application.

The court's power to remove and replace

Under the Trustee Act, the Superior Court of Justice may remove a personal representative and appoint another suitable person in their place. The court may also appoint a new trustee or trustees, either in addition to or in place of existing trustees, or where there is no existing trustee.

So there are options short of a full replacement. Depending on the circumstances, the court might be asked to add a second trustee for oversight, or to substitute a new one. Which option fits is a question for a lawyer who has reviewed the facts.

How seriously courts treat the request

The Court of Appeal for Ontario has said courts treat the removal of trustees whom a deceased specifically chose as a serious matter. A person named in the will was chosen by the deceased, so the strength of your evidence matters, and a lawyer can help you judge whether your concerns are likely to meet that standard.

The statute does not list fixed grounds. Which circumstances count, such as misconduct, a conflict of interest, delay, or the welfare of the beneficiaries, is decided case by case. Evidence matters far more than frustration.

Steps to try before a removal application

• Write to the executor listing specific questions and a reasonable reply date, and keep copies.
• Ask about the status of probate, the assets and the debts in plain terms.
• Consider asking the court to require the executor to account. A court will not require an executor to account unless a person interested in the estate or a creditor asks, so a beneficiary can apply to compel accounts.
• File Form 74P if you have a financial interest and want the court to notify you when anyone starts a proceeding involving the estate.
• If the certificate of appointment has not yet issued, a person who appears to have a financial interest can file a Notice of Objection (Form 75.1) stating the nature of their interest and objection.

If the passing of accounts reveals problems, 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. That can be a more targeted fix than removal.

Liability, pay and what the executor may argue

An executor who acted honestly and reasonably, and ought fairly to be excused, may be relieved wholly or partly from personal liability for a breach of trust. That relief does not cover a loss arising from investing trust property.

An estate trustee's compensation is a fair and reasonable allowance for their care, effort and time, as allowed by a judge of the Superior Court of Justice. Expect an executor to point to their work if you challenge their conduct.

Timing also matters. Most claims must be started within two years after the day the claim was discovered, which is the earlier of when you actually knew and when a reasonable person would have known. Claims by or against an estate for torts or injuries, other than libel and slander, must be started within two years of the death. The two-year clock does not run while a claimant is incapable of starting a proceeding and has no litigation guardian.

What to do next

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters. A party seeking an urgent hearing must complete an Urgent Hearing Request form through the Ontario Courts Public Portal, and for motions and applications a costs outline must be filed through the Portal before the hearing. Procedures differ by region, so a lawyer can confirm what applies where your case would be heard.

Under Rule 75.1, certain lawsuits about estates, trusts and substitute decisions are referred to mandatory mediation unless the court grants an exemption, and the Ontario government says the Mandatory Mediation Program operates in Toronto, Ottawa and Windsor. Rule 75.1.02(1) makes mediation mandatory in certain estates proceedings, including contested passings of accounts and claims against an estate. Whether mediation applies where your case would be heard depends on your situation, so it is worth confirming with a lawyer. Under the program, parties pay mediators directly, and the court's directions order sets the cost and how it is shared.

• Build a dated timeline of requests and responses.
• Collect statements, emails and any estate documents you hold.
• How you handle any estate property or paperwork in the meantime depends on your situation, so it is worth confirming with a lawyer before you act.
• Book a consultation with an estates lawyer before filing anything.

Frequently asked questions