How to Successfully Remove an Estate Executor in Ontario

Courts must remove estate executors by court order. A decision in 2024 by Justice B.A. MacFarlane (Deziel v. Deziel, 2024 ONSC 5279) outlined these principals for successful removal.

a. The court should not interfere lightly with the testator’s choice of estate trustee;
b. Such interference must be not only well justified but must amount to a case of clear necessity;
c. Removal of an estate trustee should only occur on the clearest of evidence that there is no other course to follow;
d. The court’s main guide is the welfare of the beneficiaries;
e. It is not every mistake or neglect of duty that will lead to removal. It must be shown that non-removal will likely prevent the trust from being properly executed. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, capacity or reasonable fidelity;
f. Removal is not intended to punish past misconduct but to protect the assets of the trust and the interests of the beneficiaries; past conduct that is likely to continue will often be sufficient to justify removal; and
g. Friction alone is not itself a reason for removal. The question is whether it would be difficult for the trustee to act with impartiality. The friction must be of such a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust.

Collecting Costs as Winners

It is important, in any estate lawsuit, to consider reasonable offers to settle and not to ignore them, regardless of how foolish they may be. A failure to respond may be interpreted by a judge later to show that you were stubbornly proceeding with the litigation. You need to consider opportunities to end disputes without the court system.

If you win the dispute and remove the executor, you may be entitled to receive your costs. On paper, you could receive 60% to 65% of your reasonable legal costs. This often may lead to disputes over what is reasonable. If you incur costs of $100,000, it is open to judges to say that legal costs were not proportionate to the amounts in question in legal proceedings.

Assume, for a moment, the court approves your legal fees in the amount of $60,000. There is no guarantee that the loser can pay this amount. You may be unable to recover your costs. The loser must be without financial resources to pay.

Read my related post, Ontario Estate Lawsuits: Revealing the Hidden Financial Burdens.

Call If You Need Help

Every estate situation is different. You need legal advice to review the will and consider your options. If you are suffering from neglect or misconduct by an existing estate executor, it’s important that you act to stop the misconduct and before the estate is permanently damaged.

Contact me for a meeting to discuss your situation. I look forward to helping you.

As a Certified Specialist, estate law is all I do.