Removal of an Estate Trustee
Once an estate trustee is granted probate (appointed) by a court, the process to remove them becomes more difficult.
Evidence showing that the estate trustee is failing to act in line with the law or instructions of the will, or improper actions (misconduct) is required to be shown. You may seek for them to pass their accounts (ask for them to bring a court application and show the court their financial actions) in order to verify if there are any irregularities or errors with the accounts.
In some scenarios, removal is not always necessary. For example, if there is a disagreement between a beneficiary and the trustee, it is possible to request for a person not related to the dispute (third-party) to temporarily step-in as the estate trustee while the dispute is ongoing; also known as an Estate Trustee during Litigation. This ETDL is not able to make any distributions from the estate.
Some reasons why removal of an estate trustee might be requested:
- The Estate Trustee is not able to act in the best interest (fiduciary duty) of the estate
- Conflict of Interest: The estate trustee is biased in their decisions because they are unable to be impartial (e.g., they are a creditor of the estate and are owed money although this doesn't always mean they can't still be neutral)
- Failing to maintain proper accounts and records.
Applying for the Removal
Any individual that holds a financial (monetary) interest in the estate is able to apply for the Court for relief such as removing the estate trustee as per s.37(3) in the Trustee Act. The Court will consider factors such as whether the estate trustee was specifically requested by the deceased’s will and if the best interests of the beneficiaries are being represented in the estate trustee’s actions, as expressed in Johnston v Lanka Estate, 2010 ONSC 4124.
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