Estate Trustee Appointment - Hull on Estates #200
Listen to: Estate Trustee Appointment - Hull on Estates #200
This week on Hull on Estates, Natalia Angelini and Paul Trudelle discuss conflicting applications to apply for an appointment as Estate Trustee without a Will.
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Natalia R. Angelini - Click here for more information on Natialia Angelini.
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Estate Trustee Appointment - Hull on Estates- Episode #200
Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #200 on Tuesday, February 23rd, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Paul Trudelle: Hi and welcome to another episode of Hull on Estates. I’m Paul Trudelle.
Natalia Angelini: And I’m Natalia Angelini.
Paul Trudelle: And this, I’m proud to say, is our bi-centennial. It’s our 200th podcast on Hull on Estates and we’re very excited about all of our history of podcasting and the fact that we were able to do our 200th episode today.
Natalia Angelini: That’s right. So let’s make this a good one.
Paul Trudelle: Yes, yes. I thought we’d talk a bit today about applying to be appointed as an estate trustee without a Will and issues that can arise when you’re applying and who can apply to be appointed as the estate trustee without a Will.
Natalia Angelini: Right and guidance to that effect can be found in the Estates Act. Section 29 identifies people who may apply when there’s an intestate circumstance. And I’ll just refer to that specifically. It can be either the person with whom the deceased with living in a conjugal relationship outside of marriage right before death, or the next-of-kin or a combination of the two. It continues to state that the Court has the discretion to make the decision as to who would be the best person or persons to apply.
Paul Trudelle: That’s right. And the specific wording is as to the discretion of the Court seems best. So there is a best candidate test for this so it’s a bit of a beauty contest when you are applying. The section is different from other sections where they define spouses because there’s no minimum cohabitation requirement as you might see in the Succession Law Reform Act. It’s just the person that the deceased was living with in a conjugal relationship outside of marriage or a spouse. So the last person living with the deceased who may be a spouse even though they don’t meet the time frames to otherwise be a spouse, can apply under that section along with next-of-kin of the deceased. And that’s one of the issues that was decided or considered in the reported decision on Gardiner and Whetung, 2009 CanLii 70510. That’s a decision of the Honourable Mr. Justice Quinn where the issue was how do you bring an application before the Court where there’s competing claims for a Certificate of Appointment.
In that case, if we want to look at the facts there, maybe we can go through that briefly so we get a bit of a background so we know why this became an issue in that case.
Natalia Angelini: Right and in this case there were competing claims between the mother of the deceased and his alleged romantic partner.
Paul Trudelle: That’s a good way of putting it because I was going to call her a spouse but there was an issue as to whether she was a spouse or not, the nature of their relationship, how long they were living together. The deceased did have a child with the romantic partner, if we can call her that. The child was a minor and would have been the sole beneficiary of the minor’s Estate. The issue was who was going to administer the Estate and the contest was between the deceased’s mother and this partner.
Natalia Angelini: Right and the mother had commenced an application…
Paul Trudelle: It was, no…the mother of the deceased…sorry the mother of the child, the deceased’s spouse put in an application to be appointed as estate trustee. There was an objection filed by the deceased’s mother to the Certificate of Appointment and the mother of the deceased then brought an application for a determination that she was entitled to be appointed as the estate trustee. The issue before the Court was whether the mother had standing…the mother of the deceased had standing and could proceed with the application. The issue that the Court considered or looked at briefly was whether the mother had a financial interest, keeping in mind that a financial interest in the Estate is necessary in order to file the Notice of Objection.
Natalia Angelini: Thanks Paul. And the Court found that having a financial interest was not necessary, that it was really an irrelevant fact because while you need that to file a Notice of Objection, there is no requirement in the Estates Act for the person applying to be trustee to have a financial interest.
Paul Trudelle: Right so if you’re going to challenge a Will, you need to have a financial interest in the Estate so that you can have standing in order to challenge that Will. So you need to be a beneficiary under a prior Will or under that Will or on an intestacy. With respect to the question, though, of who can be the estate trustee, the Court held or found or pointed out that you don’t need to have a financial interest in the Estate as long as you meet the other prerequisites being either a next-of-kin or a spouse or someone living with the deceased at the time, then you have your foot in the door already and you’re able to make that application.
Natalia Angelini: Right and on that note, it was interesting that the Court looked at Section 29(1) of the Estates Act and pointed out that the language says that the person who applies may be one of the following: the two that we had mentioned earlier, either the person living in a conjugal relationship or next-of-kin. So the Court really does have quite a bit of discretion to make that decision as is even seen in the specific language of the section where it notes the Court’s discretion.
Paul Trudelle: Right and I think just because you are the spouse or the person living with the deceased or next-of-kin, the Court’s not going to necessarily have to give you the job. There’s still a discretion on the part of the Court and the Court is not bound by the choices provided in Section 29 of the Estates Act. And the Court also said that there’s no priority. Just the fact that the spouse or the person living with the deceased is named first in that section doesn’t give them a priority over other next-of-kin.
Natalia Angelini: Right and I think that’s an important point because…
Paul Trudelle: Yeah I think that is a very important point. I agree. And I think well said. But I think that an important quote that the Court makes is in paragraph 23. The Court…and this I think is maybe the point or one of the best points of the whole case…in the end the Certificate of Appointment should be issued in favour of the person who is most likely to administer the Estate in a wise, fair and impartial manner. What matters most is fitness to administer the Estate, not relationship to the deceased. And I think that’s what underlies all of the Court’s considerations in who to apply and who should be appointed.
Natalia Angelini: Right and in this case, the mother of the deceased had quite a fulsome Affidavit that spoke to that type, that I think certainly satisfied. And one other point the Court made was when you do have conflicting applications, you know, how should you procedurally deal with it? And the Court noted that commencing an application as the deceased’s mother did pursuant to subrule 14.05(3) was the right approach.
Paul Trudelle: That’s right. So if there’s going to be a contest as to who should be appointed bring the application on notice, ask the Court to determine who the proper party is. The other alternative that the Court eluded to is just make the application for a Certificate over the counter and if there is more than one application, the Registrar will probably not give the job to anyone and kick it upstairs to a judge to consider or require the parties move. If you know that’s going to be the battle then bring the application the first time around for a determination of the Court on notice to all of the parties.
Just…we were talking about the application and you were talking about the qualifications of the mother of the deceased. I think that’s a very important consideration and I think if you’re going to be asking the Court to appoint you as the estate trustee under section 29, you should satisfy the Court that you’re going to meet the test set out by Mr. Justice Quinn, that you’re going to administer the Estate in a wise, fair and impartial manner. So I think it’s important to set out your qualifications, your experiences that may be relevant and how you’re going to administer the Estate, what steps that you’re going to take, the fact that you don’t have a conflict. One of the issues here was a suggestion that one of the parties would have a conflict if she was appointed as the estate trustee. And the Court will want to make sure that there is no conflict on the part of any estate trustee that’s appointed. So I think that’s something that you should address in your Affidavit, if possible.
Natalia Angelini: Those are all great points. I think…
Paul Trudelle: Yeah, there’s a lot in this case to recommend it. It’s a case that you would want to cite if you were going to be applying to be an estate trustee without a Will. It directs you with respect to the procedure. As usual, Mr. Justice Quinn’s reasons are extensive and well footnoted. They have a number of other practice points in there as well that we can probably have another podcast on at some point. But there’s a lot in there that would be useful to the practitioner or anyone dealing with applying to be an estate trustee without a Will where there may be competing applications.
Well I think that brings us to the end of this podcast, Natalia.
Natalia Angelini: Yeah, thanks for listening everyone. And thanks for joining me, Paul. It was a pleasure.
Paul Trudelle: It was a pleasure as usual.
Natalia Angelini: So we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or visit our blog page at estatelaw.hullandhull.com.
Paul Trudelle: And thank you for listening to our 200th episode.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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