June 20, 2023
What happens when a trustee must be removed, whether due to ill health, misconduct, or other good reason?
And who determines what is a good reason?
We touched on this topic before in an article on selection of trustees, but thought it deserves more attention.
The law in Ontario provides narrow grounds to remove a trustee, reflecting the deference given to the rights of the settlor (the person establishing the trust, such as the deceased in an estate trust) to select a trustee that they trust. Although the Court’s job is to protect the beneficiaries, there is presumed to be good reasons why the settlor named the trustee that they did.
Ontario law governing trustees is partly set out in a law conveniently called the Trustees Act, and partly, less conveniently, in case law. It is further complicated by the fact that the “trust instrument” (such as a will) may specify a mechanism to remove a trustee.
Section 5(1) of the Trustees Act tells us that:
The Superior Court of Justice may make an order for the appointment of a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
You might have noticed that this tells us nothing about the grounds. That is found in case law, which tells us grounds for removal of a trustee may include:
- Absence from Ontario;
- Conviction of an indictable offence;
- Lack of good faith;
- Failure, unwillingness or inability to carry out the trust;
- Conflicts of interests;
- Incapacity (mental or insolvency);
- Acting against the interests of the beneficiaries; or
- Any other reason why they are unfit to serve.
This might seem to be a lengthy and comprehensive list, but courts will still only exercise this power reluctantly, preferring to follow the settlor’s intentions except in clear cases requiring removal.
How important is the settlor’s intention? Important enough that even in an estate comprised mainly of a controversial painting, subject matter expertise will not be substituted for the testator’s choice, as we have discussed previously.
As a result, mere friction between trustee and beneficiaries is not enough for removal. However, if the friction makes it impossible to carry out the trust, is a danger to the trust assets, or is because of dishonesty or incompetence, that may be grounds to remove.
Only in extremely exceptional circumstances will a court remove a sole trustee, or remove all the trustees, without appointing a substitute. There needs to be someone to administer the estate. The one exceptional case we know about was where there was one asset left to be sold and the proceeds distributed. In that case, the judge took it upon themselves to order a court supervised sale, with the proceeds held in court pending order for distribution. That situation is rare, as is a judge willing to take on that responsibility.
Disharmony amongst trustees may lead to removal of one or more, but the court retains the power to “cast the deciding vote” on a contentious issue on a motion for directions, leaving the trustees in place to follow those directions. The court, however, will not exercise discretionary decision-making power for the trustee or trustees, so a deadlock there may lead to removal.
Removal of a trustee, as you may appreciate, may get somewhat complicated even in estates which on their face appear simple. It is for this reason that most estate trustees continue to seek advice from an experienced estates lawyer throughout the administration of the estate to avoid falling into the sort of problems which may lead to removal.
Beneficiaries who believe the trustee is not doing a good job increasingly seek removal.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP, we have over 75 years of experience in assisting trustees of all types, including estate trustees, in administering trusts and estates. If you are an estate trustee, or any other sort of trustee, and require experienced professional legal advice, please give us a call and see if we are the right lawyers for you.
Together with our experience, we are aware and active in the current surge of estate litigation, acting for all parties in various disputes.
If you are a beneficiary concerned about trustee behaviour, we may also be the right lawyers for you.
Of course, if it is your own will and what may happen after you are gone that you are worried about, the best thing to do is discuss your estate planning with one of our knowledgeable team.