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Those familiar with estate litigation are well aware that family relationships can be complicated, and in the event of someone’s death, the problems in relationships amongst surviving members of the family can lead to impasses in how the deceased’s estate is managed. In a recent decision from the Ontario Superior Court of Justice, the court was asked to determine whether the brother of the deceased had a conflict of interest as alleged by the deceased’s niece.

The deceased’s brother is named trustee of the estate

The deceased passed away unexpectedly at a nursing home in Ottawa on September 20, 2019. His brother, “BV” obtained a certificate of appointment of estate trustee without a will. However, the deceased and BV’s niece, “TV” did not agree that BV should be trustee and commenced an application to remove him from the role. She instead stated she should be named trustee, and ask the courts to make an order reflecting that as well as an order requiring BV to pass the accounts of the estate. She said that when BV obtained his certificate of appointment, important information was not shared with the court that would have shown a conflict of interest.

Does the estate trustee have a conflict of interest?

The court spent some time explaining this history of the deceased and the parties’ involvement in his life. The court stated that there was “clear animosity” between BV and TV, as well as TV’s sister, “SV.”

Courts are allowed to remove a trustee from an estate under Section 31(1) of the Trustee Act if the court is satisfied that the certificate was issued in error or as the result of fraud. Additionally, a trustee may be removed if it is in the best interests of the trust and beneficiaries to do so. Actual misconduct is not required for this, and allegations of misconduct can be enough for the courts to take action.

However, in this case, the court did not find anything in the record that supported TV’s position that BV should be removed. One of the main points in TV’s position was that she was not served with notice that BV had applied to become the trustee of his brother’s estate. However, that was not true, as TV’s lawyer was provided with materials, but nobody responded with an objection.

TV also alleged that BV was involved in litigation with the deceased, and as a result, a conflict of interest is present. But the court did not agree that the litigation, which had since been resolved, created a conflict. In fact, none of the allegations made by TV against BV were found to be credible or relevant to the issues.

If you are a beneficiary or other party with interests in an estate, are concerned about the appointed executor or trustee, and wish to take steps to remove them, contact Derfel Estate Law. We regularly help clients ensure that decisions are being made in the best interests of the estate. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.

 

 

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

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