Wait Until the Coffin Is Closed Before Trying To Remove An Estate Trustee
What happens if you expect to inherit under an existing will but believe that the estate trustee will create problems. Are you required to wait until those problems are created or can you be proactive and prevent them. The easy solution would be to talk to the testator and try to convince him or her to change the appointment of the trustee. However, if the testator has lost testamentary capacity due as a complication of illness or aging, this option is unavailable. What is the expectant beneficiary to do? A recent case, Keller v Wilson, clarifies that the beneficiary is required to wait until the testator is dead before bringing an application to have the trustee removed.
By will, executed in 2006, the testator made a number of bequests to various individuals and charities. The testator named her son-in-law and lawyer as trustees. Four years later, the testator executed a power of attorney for property and named the two trustees as attorneys also. Subsequently, she developed advanced dementia and was unable to care for her property. By this time, there was only one surviving beneficiary for the residue of the estate, her son.
The son brought an application to have the lawyer and son-in-law removed as both trustees and attorneys. The basis of his complaint was that there was "voluminous documentation" that demonstrated continuous antagonism and adversarial positions to him. In other words, the expectant beneficiary anticipated problems.
The court denied the request to remove the estate trustees stating unequivocally that removal of an estate trustee was not possible before death.
The court also denied the request to remove the lawyer and son-in-law as attorneys for property. In order to remove an attorney acting under power of attorney, the applicant must produce "strong and compelling evidence" of misconduct or neglect on the part of the attorneys. It is insufficient to show that the attorneys dislike someone. The removal must be in the genuine interest of the person who granted the power of attorney. Additionally, the person seeking the removal must present a management plan for the property.
The Lesson: Removal of either an estate trustee or attorney acting under a power of attorney is difficult as courts are reluctant to interfere with the wishes of a grantor or testator. It is important to present "strong and compelling" evidence that demonstrates a need to remove the trustee/attorney for the interest of the estate/grantor and not for personal or selfish motivations.
Keller v Wilson, 2015 ONSC 6962 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc6962/2015onsc6962.pdf
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