Facts: Giuseppina Vellone (the “Deceased”) died on February 1, 2022 and was survived by her four children, Salvatore Vellone (“Sam”), Maria Barillari (“Maria”), Domenico Vellone (“Domenico”), and Angelo Vellone (“Angelo”), and six grandchildren. The Deceased appointed Sam, Maria, and Domenico as the estate trustees jointly without majority decision-making. Under the Will, each of the deceased’s grandchildren would receive $5,000, Angelo would receive $100,000, and her other three children would share in the residue equally.
Shortly after their mother’s death, a disagreement arose between the estate trustees about the distribution of the estate which led to the Maria and Sam, the applicants, bringing a motion to remove Domenico, the respondent, as an estate trustee. The applicants claim that the respondent demanded that the residue be divided equally among the four children and intentionally delayed the distribution of the assets of the estate. David Derfel and Tijana Potkonjak, of Derfel Estate Law, represented Domenico in the proceeding.
Decision: Justice Dietrich noted that there is a very high bar for removing an estate trustee and a court will only interfere with the testator’s choice as a last resort and in a case of clear necessity. That was not the case here.
The respondent’s conduct was not perfect. He raised and abandoned a challenge to the court’s jurisdiction and failed to respond to the applicants’ counsel, which increased the duration and costs of the proceeding. However, his conduct did not endanger property of the estate, prejudice the interests of the beneficiaries of the estate, did not demonstrate a want of honesty, capacity, or reasonable fidelity, and is not likely to continue. As the standard for the conduct of an estate trustee is not perfection and there was no clear necessity to remove Domenico as an estate trustee, Justice Dietrich dismissed the application.
The applicants also brought a motion to strike parts of Domenico’s evidence in his responding record and factum on the basis of settlement privilege, which was granted.
Key Takeaway: There is a high bar for removing an estate trustee. Imperfect conduct which does not endanger the property of the estate or prejudice the interests of beneficiaries is not sufficient.