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ESTATE TRUSTEE: FREE RADICAL OR LOOSE CANNON?

Having known that the estate trustee authorized by the will is like a free radical (definition: a chemical ion free to do anything), it remains to be seen that the person is not also a loose cannon (definition: demolishes everything in sight). The estate trustee (intransigent or oblivious, depending on the point of view) has left the challenger of the testament in a fix, and the best way for the person would be to apply for an order requiring the estate trustee to either apply for or refuse the appointment. The “order to accept or refuse appointment” can be obtained fairly easily without notice in the same manner as that used to obtain an order to return the Certificate to the court, as described in my earlier articles.

Revocation

It is open to any person having a financial interest in an estate to make an application to the court to revoke the Certificate of Appointment of an estate trustee. This procedure is distinctly different from a challenge to the validity of a will. On the one hand, it says that the validity of the will is not in question; on the other, it affirms that the Certificate was issued in error or as a result of a fraud on the court, or where the appointment is no longer effective, or for any other appropriate reason. Take, for instance, a Certificate of Appointment of Estate Trustee issued in connection with a will thought to be the deceased’s last will. Thereafter a later, unrevoked will is subsequently found. Now, if the court is satisfied that the Certificate was issued in error under such circumstances, and no issue arises as to the validity of the later will, the court, on hearing the application, could order the revocation of the Certificate, thereby permitting the later will to be probated. Where the circumstances are more complex or contentious, it would be necessary to move for directions under appropriate rules with respect to the conduct of the proceedings. It can also happen, in the context of an application to revoke a Certificate, to make a motion, without notice, for an order requiring the estate trustee to return the Certificate of Appointment to the court pending the determination of the issues. Then the estate trustee would be defanged and nothing would happen until the issues are determined or the certificate is ordered to be released back to the estate trustee.

Solemn proof

Generally, probate (Estate Administration) is obtained without much fuss in “common form”, that is, no court attendance is required, upon filing the necessary documents. There are, however, circumstances when a will must be formally proved in open court, with notice to all interested parties. This procedure is generally known as “proof in solemn form”. A judge would require this procedure on an application brought by the estate trustee, or by any person having a financial interest in the estate, for directions regarding proof of the will. The need for formal proof of a will generally arises in circumstances where, for instance, the two witnesses to a will cannot be located, or are dead, or the will being put forward as the last will and testament of the deceased is not an original. When a will is being challenged for any reason, the need for formal proof is also overwhelming.

In fact, formal proof lends weight to the hearing with respect to the contestation of the will. The purpose of formal proof is due execution of the will (i.e. properly witnessed and sworn) and the affirmation of the testamentary capacity of the testator by cross-examination of one or more of the witnesses to the will and any others with knowledge of the facts and circumstances relating to these issues. No wonder, a witness in the hearing is subject to examination, cross-examination and re-examination, in the usual manner of a trial.

Lost will

It is not so unusual for a last will to get lost or destroyed. It needs to be proved on an application supported by affidavit evidence, without the necessity for a court appearance, but with the consent of all persons having a financial interest in the estate. If full consent is not available, it is necessary to apply to the court for directions respecting the procedure for proving a lost or destroyed will. As earlier, all parties having a financial interest in the estate would have to be served with notice of the application for directions at least ten days before the hearing.

Estate trustee, removal and replacement

It is possible that there could be disputes between the beneficiaries and estate trustees, or between estate trustees themselves. Without an applicable mechanism either in the will or in a statute permitting an estate trustee to resign, recourse to the court may be necessary to resolve the dispute. There are provisions for the removal of a personal representative, meaning an estate trustee with or without a will, by filing an application to the Superior Court of Justice. Thereafter, the court would appoint a replacement or replacements to act in the place of the estate trustee who is removed. That, however, is not necessary if the estate trustee being removed was not acting alone, since the others would simply continue. Such a proceeding is commenced by notice of application along with a supporting affidavit. That affidavit is to be clear about why the removal and substitution is sought, the size of the estate, who the beneficiaries of the estate are, and the relationship of the persons who are being proposed as substitute estate trustees. If the beneficiaries are minors, unborn or un-ascertained persons, or incompetent individuals, the involvement of either or both of the Children’s Lawyer and the Public Guardian and Trustee would also be necessary. If agreed upon, the order would generally provide for the removal and substitution (where appropriate) of the estate trustee, the vesting of all of the assets, both real and personal, in the remaining or replacement estate trustee, and would usually require that the estate trustees who have been removed pass their accounts up to the date of removal (i.e. provide an accounting of everything they did so far). This removal and substitution of estate trustees is to be brought to the knowledge of the registrar of the court that issued the certificate of appointment, along with a request for a “status certificate”. It would serve as a notice from the court to all concerned that the estate trustee named in the original certificate of appointment has been removed and other persons have been substituted. Beneficiaries who are unhappy with the performance of the estate trustee can bring an application for removal of the person concerned. Similarly, an estate trustee desiring to be relieved of his or her duties is to make an application to be removed.

If there are two or more estate trustees, who are unable to work together or cannot resolve a fundamental disagreement about an aspect of the administration of the estate, any one of them can complain about the conduct of the other. Therefore it may be the best idea to read an inheritance tax relief & exemptions list to familiarise yourself and prevent these kinds of disagreements from happening! Disagreement or hostility between a beneficiary and an estate trustee does not generally lead to a removal of the latter, unless there is some evidence of mismanagement or breach of duty by the estate trustee. If the hostility is such that the estate trustee finds it impossible to carry out his or her duties in an impartial and objective manner, an order will be made removing him or her.

Estate administration is not an easy task, and although it is usually family members who are the estate trustees, often time they find themselves amidst conflict. Retaining an estate lawyer is almost always a must with large estates and many beneficiaries. Contact the lawyers at Levy Zavet PC to help represent the estate either for the trustees asking for directions or the beneficiaries trying to deal with their dissatisfaction in the administration of the estate.

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