In preparing a will or estate plan for a client, I often recommend that they ask the person(s) they propose to appoint as estate trustee (executor) in their will whether they would be willing to perform such role. It is not uncommon to have those appointed to this role decline at the relevant time for a variety of reasons. These reasons may include the onerous duties that may be involved due to the size and complexity of the estate, time constraints, the concern about personal liability or even the appointee`s illness.
When a person appointed to act as estate trustee declines the role without having performed any action in furtherance of the estate administration, the person is said to have “renounced” the role. In Chambers Estate v. Chambers, 2013 ONCA 511 (CanLII), the court reiterated the definition of renunciation as being “[t]he formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right”. A grant of probate or administration is now more commonly referred to as a Certificate of Appointment of Estate Trustee With or Without A Will, as the case may be. In Chambers Estate, the court observed that renunciation is generally not available if a party has already “intermeddled” with the estate.
Intermeddling is the term used to describe the acts of a person who deals with an estate without having been formally recognized as the estate trustee i.e. by a grant of probate. It was further said that even a slight act of intermeddling with a deceased`s assets may preclude an estate trustee from subsequently renouncing.
As one authority cited in the case states, renunciation or disclaimer, as it is sometimes called, “is available to all those who have been appointed trustees, whether as original trustees, new trustees, or additional trustees, but who have not expressly accepted and who have done no act which is deemed implied acceptance.” Where someone has accepted the role or acted in such capacity, the options available to avoid legal obligation to complete the duties of the role are resignation or removal.
In Chambers Estate, the appointed estate trustees were deemed to have renounced this role because they failed to apply for a grant of probate within the time period ordered by the court. However, the court observed that as one of the two estate trustees continued to administer the estate, relevant legislation stipulated that the role of estate trustee devolved to her nevertheless on the basis of intermeddling.
For advice regarding the appointment, resignation or removal of an estate trustee, please contact Andrea Kelly.
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.