The death of a family member can be a stressful time, and despite the common thought that it provides a time for family members to come together to support one another in a time of hardship, it can also be the case that the death of a loved one creates stress in these relationships. In a recent case heard by the Ontario Superior Court of Justice, the deceased’s niece was unsuccessful in attempting to remove her uncle (the deceased’s brother) as the estate trustee.
Poor health requires care
The deceased suffered a stroke in May, 2016. Due to medical reasons following the stroke, his health declined, leading to repeated hospitalizations. Ultimately, the deceased’s brother found him living on the streets in Toronto, and persuaded him to move back home. Four months later, the deceased was found to be incapable of managing his property and personal care.
The deceased suffered another medical crisis in March 2018 and was discharged into a long-term care facility. His brother, “BB” was appointed as the deceased’s guardian for property and personal care in December 2018.
Niece learns of appointment as guardian
It wasn’t until May 2019 that the deceased’s niece, “TV,” learned that the deceased had granted her powers of attorney for personal property and care in 2017, only after which BB was BB appointed guardian.
While TV and BB awaited a trial date to sort out this issue, the deceased passed away unexpectedly without a will. This occurred on September 20, 2019. BB was appointed estate trustee on December 4, 2019 after serving his notice of application on all beneficiaries in October.
Since the deceased passed away without a will, his estate was distributed with his brother (BB) getting one-third, another family member getting one-third, and TV and her sister splitting the remaining third.
Niece seeks to become estate trustee
The niece’s application was served with the hope that she could replace B as the trustee of the estate. She stated that BB had a conflict of interest since he had once engaged in prior litigation against the deceased. She stated there was “clear animosity” between BB and herself. She also alleged that BB had committed a fraud upon the court by obtaining the original certificate of appointment because she was not served with notice.
However, the court found that there was nothing on record to support her position. The court noted that she eventually admitted she was served with notice of BB’s intent to serve as trustee. The court wrote that her statement to the contrary was simply not true. All of the beneficiaries had been served, and her signature was on a registered mail envelope which was used to deliver notice.
Ultimately, the court found that none of the reasons TV brought to convince the court that her uncle should not be the executor of the estate were based in fact. As such, her application was dismissed.
If you are the friend or family member of a testator and are concerned about the appointed trustee or executor, contact Derfel Estate Law. Our Toronto estates lawyers help clients ensure that their interests or the interests of their loved ones are protected, and decisions are being made in the best interests of the estate. Call us at 416-847-3580 or contact us online to schedule a consultation