This article is the fourth in a series of articles discussing the available Orders for Assistance under Rule 74.15 of the Rules of Civil Procedure (the “Rules”) and focuses on Orders relating to the appointment of estate trustees.
An Order to Accept or Refuse Appointment as Estate Trustee
An Order to Accept or Refuse Appointment as an Estate Trustee is one of the more commonly sought Orders for Assistance and arises in situations where there is a known estate trustee, but no steps have been taken to administer an estate.
A party may move for an Order requiring an estate trustee to accept or refuse appointment as an estate trustee with a Will (or without a Will under rule 74.15(1)(b)). If upon receipt of the Order (Form 74.36), the estate trustee fails to commence an Application for Certificate of Appointment of Estate Trustee within the time specified in the Order, he or she will be deemed to have renounced any entitlement to apply to be appointed as Estate Trustee.[1]
In Brian Schnurr’s Estate Litigation, the author provides the following helpful examples as to when this type of Order for Assistance may be useful:
when “a person wishes to challenge the validity of the will or have the will proved before the court, but is concerned that the executor will never seek a Certificate of Appointment and could fully administer and distribute the estate without obtaining a certificate”; [2] and
when “nothing is happening in the estate administration or it is happening at a very slow pace and an interested party is concerned that if the executor is going to administer the estate, a Certificate of Appointment should be obtained as quickly as possible so that it is apparent that the executor is committed to proceeding with the estate administration.” [3]
As noted above, a similar order may also be sought on an intestacy. [4]
An Order to Consent to or Object to a Proposed Appointment as Estate Trustee
Where an individual is applying for a Certificate of Appointment of Estate Trustee (with or without a Will)[5], he or she may move for an order requiring any person to consent to the applicant’s appointment as estate trustee or file a notice of objection in respect of the same.[6]
In the event that no response is received following the service of an Order to Consent or Object to a Proposed Appointment as Estate Trustee, the individuals served will be deemed to have consented to the applicant’s appointment. [7]
This type of Order would be sought where an individual is applying to be appointed as an estate trustee without a Will or with a Will if the proposed estate trustee is not named in the Will.
PRACTICE TIP: This Order is an effective tool to break the logjam caused by a breakdown in communication between a proposed estate trustee and one or more beneficiaries whose consent is needed for the appointment of the Trustee. Rather than waste time and money on repeated follow-up communications, a simple motion can be brought to force the resolution of the issue.
Rule 74.15 provides useful tools for individuals requiring assistance with respect to issues that arise in estate administration. For more information on how to obtain an Order for Assistance, please contact David A.S. Mills or Lauren A. Kason.
For previous posts in this series, see the links below:
Part One: Who is permitted to bring a motion under Rule 74.15?
Part Two: The procedure for obtaining an Order for Assistance and the associated notice requirements.
Part Three: The orders that can be obtained under section 9 of the Estates Act, with respect to the production of, or examinations related to, testamentary documents.
[1] Rule 74.15(1)(a), Form 74.36.
[2] Brian A. Schnurr, Estate Litigation, Volume 1, 2d ed. (Toronto: Thomson Reuters) at pageS 3-3.
[3] Ibid at page 3-3.
[4] Rule 74.15(1)(b) provides that a person may also move for an Order to Accept or Refuse Appointment as estate trustee without a Will of the Rules
[5] Rule 74.06, 74.15(1)(c) of the Rules; Supra note 2 at page 3-4
[6] Rule 74.15(1)(c) of the Rules; Form 74.38
[7] Rule 74.15 (1)(c) of the Rules; Form 74.38
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