Removing an Executor in Ontario: Grounds and Process

Estate trustees, often called executors, hold real power over money that belongs to others. When one is slow, secretive, careless or openly hostile, beneficiaries often feel stuck. Removal is one tool, but it is not the only one, and it usually works best alongside others.

This article walks through the options Ontario beneficiaries commonly consider, from asking for accounts to a motion for removal. It is general information. The grounds for removal depend on the facts, so a lawyer should confirm the test that applies to you.

Start with the problem, not the remedy

Removal is a serious step. Before asking, it helps to be clear about what is going wrong. Common complaints include the following.

• No information about assets, debts or progress
• Unexplained delay in distributing the estate
• Mixing estate money with personal funds
• Paying themselves before the accounts are approved
• Refusing to pass accounts or answer reasonable questions
• Acting in their own interest rather than the beneficiaries'

Which of these justifies removal depends on the facts and the court's view of the whole conduct. Someone who is merely irritating or slow is different from someone who is putting the estate at risk.

Accounts: the first practical lever

There is no statutory requirement for an estate trustee to pass accounts, and no law requires accounts at fixed intervals. A court can compel a passing at the instance of a person with an interest. An application to pass accounts has a court filing fee of $432.00.

If the accounts raise concerns, a beneficiary can file a notice of objection to accounts, which has a filing fee of $93.00. On a contested passing, the court decides only the issues raised in the notices of objection, so it matters to set out your concerns clearly. The Court of Appeal has also held that a notice of objection to accounts does not commence a proceeding, and that a beneficiary's objection to old accounts is not barred by the two-year limitation period. It warned that a limitation bar would give a trustee a perverse incentive to wait out the period and would insulate their management from effective scrutiny.

The Office of the Children's Lawyer must be served in estate matters affecting a child's interest, including trustee removal and applications to pass estate accounts.

Compensation and personal responsibility

A trustee may take compensation before the accounts are passed only in limited circumstances: with unanimous agreement of the interested persons, with court approval, or where the will allows it. Taking it outside those limits risks a reduced amount, repayment and liability for breach of trust. On a contested passing, the court can make an order for fair and reasonable compensation to the trustee.

Conduct can also affect who pays legal costs. In one Court of Appeal case, a beneficiary moved to remove the estate trustee, who later resigned under a court order. The court held the trustee personally responsible for costs because he acted unreasonably and in his own self-interest, and he was not entitled to indemnity from the estate. The result turned on that case's facts, but it shows a trustee does not always get to charge a fight to the estate.

The process in broad strokes

How a removal request is brought depends on your situation, so it is worth confirming with a lawyer. A notice of motion served on another party has a court filing fee of $339.00, and an application for directions is $232.00. Mandatory mediation applies to specified estate proceedings including contested passings of accounts and claims against an estate, and mediation directions normally form part of a motion for directions. In Toronto, parties file a costs outline through the Ontario Courts Public Portal before the hearing and serve it.

If you want the property protected while a dispute plays out, the court considers whether the assets are the subject of the dispute, whether there is a serious issue to be tried, and the balance of convenience, and it may impose conditions. An application for preservation can fail at the evidence stage, so be prepared with records.

Estate litigation follows the ordinary civil costs regime. Costs come out of the estate only where public policy applies, such as ensuring the estate is properly administered. Courts may also split costs, with the loser paying part and the estate bearing the balance, and the estate should bear only costs reasonably associated with ensuring it is duly administered.

What to do next

If the trustee is also acting under a power of attorney for the deceased, the pre-death period may raise separate questions. An attorney for property owes fiduciary duties, including the core duty to act exclusively for the grantor's benefit. Where the attorney is also the estate trustee, beneficiaries have been allowed to seek leave of the court to obtain an accounting for the pre-death period.

• Write to the trustee, politely and in writing, asking for specific information and accounts.
• Keep a timeline of delays, refusals and any payments the trustee took.
• Save emails, bank statements and notices you receive.
• Do not take matters into your own hands, such as withholding cooperation or contacting banks directly.
• Speak with an estate litigation lawyer before filing, to confirm the removal test, deadlines and costs risk.

Frequently asked questions