Compelling Unresponsive Estate Trustees to Act

An order to accept or refuse an appointment under Rule 74.15(1)(a) or (b) of the Rules of Civil Procedure is an under-utilized tool in estate litigation. It allows an interested party to compel the estate trustee, either named in a will or acting as an estate trustee, to seek a certificate of appointment.

 Rules 74.15(1) deals with orders for assistance,

​74.15 (1) In addition to a motion under section 9 of the Estates Act, any person who appears to have a ​financial interest in an estate may move,

​​(a) for an order requiring any person to accept or refuse an appointment as an estate trustee ​​​with a will;

​​(b) for an order requiring any person to accept or refuse an appointment as an estate trustee ​​​without a will;

One common situation is where a person acting as the Estate Trustee chooses not to seek a certificate of appointment. Someone with a financial interest in the estate can file a Request for Notice of Commencement of Proceeding but is left without further recourse.

Another situation where an order to accept or refuse an appointment can be useful is with joint estate trustees. Where there are multiple estate trustees named in the will and one or more are unresponsive or obstructionist, simply requesting their renunciation is often ineffective. Adding further struggle, the other trustees may be left without access to the original Will if the holder of the Will requires the consent of all named trustees or if the unresponsive trustee is the holder.

 With the order, the unresponsive trustees must apply for the certificate of appointment within the specified amount of time. If not, the unresponsive trustee is deemed to have renounced their right to act as estate trustee and the administration of the estate is able to proceed without them.

 Orders for assistance may be brought on an ex parte basis, but the case law suggests notice should be provided unless there is “extraordinary urgency” to justify a lack of notice.  Since a response is what is being sought with this order for assistance, rarely will there be justification to forego notice.

 If you are having difficulty with an unresponsive or obstructionist estate trustee, contact us. We can discuss if an order to accept or refuse an appointment is the right step forward in your situation.