Judge expresses concern over swift steps taken to secure executor role
The Court of Appeal for Ontario recently dismissed an appeal by a former lawyer whose request to be appointed estate trustee the Ontario Superior Court of Justice had refused.
In September 2022, a man executed a will naming his common-law spouse and his four children as beneficiaries. He appointed his friend as executrix and trustee of his estate.
The appellant witnessed the will’s signing. His name and address appeared on the backsheet of the will, where a lawyer’s name and address would typically appear. He was listed on the backsheet as a “consultant.”
The testator passed away in April 2023. Two days later, the testator’s friend renounced her right to a certificate of appointment. By the end of that month, the testator’s spouse and children signed consents supporting the appellant’s appointment as estate trustee and a waiver of the requirement for him to post security.
Three months later, the appellant applied for a certificate of appointment and estimated the estate’s value at over $1.3 million. However, he failed to include an affidavit detailing the steps that he took to determine the estate’s debts or an undertaking to ensure the payment of these debts.
In September 2023, an application judge of the Ontario Superior Court raised concerns about the appellant’s potential appointment. The judge found that the appellant might be engaged in the unauthorized practice of law and thus could not be presumed a person of integrity, probity, and trustworthiness.
The judge referred to the appellant’s history as a former lawyer who was disbarred in 2013 based on findings that he participated in fraudulent mortgage transactions. The judge also expressed concern over the appellant’s involvement in the preparation of the testator’s will and the swift steps taken to secure his appointment as executor.
The testator’s heirs filed a motion supporting the appellant’s appointment. They said that they agreed among themselves that the appellant would be the most qualified and trusted person to serve as executor of the estate. They also cited the appellant’s long-standing relationship with the testator, who remained confident in him despite his disbarment. No affidavits or additional evidence supported the heirs’ claims.
In November 2023, the application judge found it appropriate to refuse the appointment of the appellant as estate trustee. The judge accepted that disbarment did not automatically disqualify him as estate trustee. However, the judge found no evidence addressing his concern that the appellant might be participating in the unauthorized practice of law.
The appellant elevated the case to the appeal court. In James Estate (Re), 2024 ONCA 623, the Ontario Court of Appeal dismissed the appeal and upheld the decision to deny the appellant’s appointment as estate trustee.
The appeal court stressed that the Ontario Superior Court had the inherent jurisdiction to refuse an estate trustee’s appointment if it could undermine public confidence in the administration of justice.
The appeal court noted that, while the court generally deferred to the wishes of testators and their beneficiaries, this deference was not absolute, particularly when there were concerns about the appointee’s qualifications or conduct.
The appeal court agreed that the circumstances surrounding the appellant’s involvement in the estate planning and his history of disbarment justified a higher level of scrutiny.
The appeal court rejected the appellant’s argument that the application judge unduly focused on his disbarment or that the decision showed bias.
The appeal court pointed out that the judge gave the appellant an opportunity to address the identified concerns. Instead, the appellant relied on the beneficiaries’ support without providing substantive evidence to counter the concerns, the appeal court said.
