This blog has been written by Karen La Caprara, Counsel, at Fasken LLP
When contemplating estate planning, it can be easy to focus on a single moment: death. But estate administration does not occur in a moment. It often unfolds over many months, or years, particularly where there is a continuing trust, significant tax work, or illiquid assets. This raises a question that testators can easily overlook at the planning stage: What happens if the executor becomes incapable after the testator’s death while administering the estate? With many estates being administered over extended periods by older spouses, siblings, or peers, the risk that an executor becomes incapable is very real and foreseeable.
While the law in Ontario provides tools to remove and replace estate trustees, courts do not interfere lightly with a testator’s choice, and the available remedies can be slower, more expensive, and more contentious than clients may expect.[1]
What does executor incapacity look like? The executor who suffers a sudden and total loss of capacity is the easy case. More commonly, practitioners encounter executors experiencing gradual decline. They have difficulty understanding financial information, record-keeping becomes inconsistent, deadlines are missed, or they increasingly rely on others to make decisions.
Executors are expected to obtain professional assistance, as needed. They may retain lawyers, accountants, financial advisors and more. But there is a critical distinction between assistance and delegation. The executor remains the fiduciary and is expected to exercise independent judgment.
When the executor is no longer meaningfully engaged in decision-making, when another person is effectively “running the estate,” or when the executor cannot explain key decisions, they are no longer fulfilling their fiduciary duties.
As an aside, clients sometimes assume that the attorney appointed under the executor’s Power of Attorney for Property can step in for the executor on the administration of the estate where the executor’s capacity is failing. However, the office of executor (similar to that of an officer or director of a corporation) is personal, arising under the will (and, where applicable, the certificate of appointment). An attorney cannot step into the executor’s shoes to administer the estate.
When incapacity arises before the executor has begun to act, the situation is more manageable, particularly where the will names an alternate executor. If the named executor retains sufficient capacity to renounce (a lower threshold than that required to administer an estate), renunciation remains an option. Alternatively, if the will defines incapacity and the named executor meets that definition, the alternate may be authorized to act without further proceedings.
Where those routes are unavailable or the will does not address the situation, the court can intervene. On an application for a Certificate of Appointment of Estate Trustee, the court may “pass over” the named incapable executor and grant the certificate to the alternate named in the will or, failing such an appointment, to another person to administer the estate. Ontario decisions confirm that passing over may be appropriate where the named executor has failed to take steps to administer the estate or is otherwise unsuitable.[2]
When incapacity arises during the administration of the estate, replacement becomes more complex. As the Ontario Court of Appeal confirmed in Chambers Estate v. Chambers, once an individual has “intermeddled” (by dealing with assets, retaining counsel, or otherwise engaging in administration), renunciation is generally no longer available and a formal court process is required to bring the role to an end.[3]
Where there is no incapacity provision in the will and no alternate executor, the estate may quickly stall. Financial institutions may refuse instructions, property transactions may be delayed, and beneficiaries may question whether decisions are being made at all.
The legal solution is typically an application to court. Under s. 37(1) of the Trustee Act, the Superior Court of Justice may remove a personal representative and appoint a replacement. Section 5 provides additional authority to appoint a new trustee, and Rule 14.05(3)(c) of the Rules of Civil Procedure governs the procedure.[4]
While a remedy is available, it does not mean that obtaining relief is easy (or cost-effective). Courts have repeatedly emphasized that they will not lightly interfere with a testator’s choice of fiduciary. On applications for the removal of an executor/estate trustee, Ontario courts have emphasized the functional nature of the applicable test: Does the fiduciary’s conduct jeopardize the proper administration of the estate or the interests of beneficiaries?[5] Removal requires clear evidence that intervention is necessary to ensure proper administration.[6]
Appropriate planning, strong will drafting and early legal advice following the death of a loved one can help mitigate the risk that an incapable executor poses to an estate, and possibly avoid having to seek a remedy from the Court:
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- Ensure that alternate executors are named and that their appointment comes into effect if the initial executor appointed is incapable or becomes incapable prior to the completion of the estate administration.
- A definition of incapacity should be included in the will, with a mechanism to determine in a clear and objective manner whether or not a named individual is capable of acting or continuing to act as the executor of the estate.
- Include administrative powers in the will that allow for the replacement, retirement and removal of trustees. Note though that these provisions may only be effective in avoiding a court procedure when removing a trustee of a testamentary trust created by the will and not the removal of an executor who has intermeddled in the estate.
- When thinking about appropriate alternate executors, keep in mind family dynamics, protective objectives, and the potential need to balance competing interests. What role is or are the first-named executor or executors expected to play? If multiple executors are appointed to balance competing interests, should specific alternates be appointed for each executor? Should independent trustees be appointed where there is high-risk of conflict or a lengthy estate administration is expected? By way of illustration, consider a blended family where the deceased included a lifetime trust for their surviving spouse, with a gift of the balance of the trust on the spouse’s later death to the deceased’s children. If the surviving spouse is appointed as co-executor with a child of the deceased (a common scenario), what happens if that spouse’s capacity starts to fail and they can no longer act as trustee? Can the child of the deceased be trusted to look out for the spouse’s interests or, preferably, has an independent trustee or a family member of the surviving spouse been appointed to act in place of the spouse to help balance the competing interests?
- As noted, Ontario courts emphasize that the primary consideration in trustee removal cases is the proper administration of the trust and the welfare of beneficiaries, not simply adherence to the testator’s choice.[7] That same perspective should inform drafting.
- Reviewing and updating estate planning documents regularly is critical, including when the circumstances of the named fiduciaries change. If a capable testator has appointed their spouse as executor and they see that their spouse’s capacity is failing, that testator should seek legal advice regarding updating the executor appointment.
- Prior to accepting the role of executor on the death of a loved one, seek legal advice. Get a sense of what will be involved in administering the estate and consider the long-term feasibility of acting as executor. As noted, it is much easier to renounce prior to acting as executor than stepping down or being removed once the administration has begun.
Executor incapacity is not an exceptional scenario. It is something practitioners frequently encounter, particularly with lengthy estate administrations and where executors are often similar in age to the deceased. While Ontario law provides remedies (removal, replacement, passing over), they often introduce delay, cost, and conflict. Planning for incapacity at the drafting stage is key to limiting the need to rely on court intervention.
[1] Kasanda v. Sartarelli, 2025 ONCA 27.
[2] Sassano v. Iozzo, 2024 ONSC 1517; Kinnear v. White, 2022 ONSC 2576.
[3] Chambers Estate v. Chambers, 2013 ONCA 511.
[4] Trustee Act, R.S.O. 1990, c. T.23, ss. 5, 37(1); Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 14.05(3)(c).
[5] Johnston v. Lanka, 2010 ONSC 4124; Taetz v. Mikolajewski, 2023 ONSC 4635.
[6] Johnston v. Lanka, supra note 5; Kasanda v. Sartarelli, supra note 1.
[7] Gonder v. Gonder Estate, 2010 ONCA 172; Kasanda v. Sartarelli, supra note 1.
