The court has an inherent jurisdiction to refuse an appointment of an estate trustee even where the application is unopposed.  This inherent jurisdiction was affirmed by the Ontario Court of Appeal in James Estate (Re), 2024 ONCA 623, when it upheld the lower court’s decision to refuse an application for a certificate of appointment of estate trustee (“CAET”).  In James Estate, the appellant brought his application for a CAET with the consent of the deceased’s children and common law spouse and after the estate trustee appointed in the deceased’s will renounced.  However, the application for a CAET was sent to a judge to determine whether to allow the application because it did not comply with the rules to dispense with the bond.

Upon review, the application judge noted the following.  The appellant is a disbarred lawyer, yet was a witness on the will and included his name on the back sheet of the will as “consultant”.  The estate trustee appointed in the will renounced her right to act only two days after the deceased’s death.  The beneficiaries consented to the appellant’s appointment within a short time after the renunciation and the consent included a waiver of any bond.  In expressing concerns about whether the appellant was practising law without a license, the application judge provided the appellant and anyone affected by the application to bring a motion for directions.  The beneficiaries’ filed a notice of motion but no evidence in support of their motion.  The notice of motion contained some additional details about the beneficiaries’ trust in the appellant. But it also included a statement that the appellant continued to “advise” the deceased and his family after he was disbarred.  The appellant did not file his own motion or provide any evidence.  On appeal, the appellant’s motion to admit fresh evidence was dismissed.

In upholding the application judge’s decision, the Court of Appeal noted that s. 7(1) of the Estates Act, RSO 1990, c E.21, gives the Ontario Superior Court of Justice jurisdiction to grant probate or letters of administration.  The Estates Act, together with rr. 74 and 75 of the Rules of Civil Procedure, RRO 1990, Reg. 194, transferred this jurisdiction from the Surrogate Court to the Superior Court.  In so doing, it also transferred the court’s inquisitorial role in estates proceedings.  The Court of Appeal noted that in Neuberger v. York, 2016 ONCA 191, the court found that it has a “special responsibility to the testator, who cannot be present to give voice to his or her true intentions” (at para. 67-68) and held in James Estate “For that reason, an application for probate can be refused if there is no evidence to support it, and even if the estate’s beneficiaries support it.” (at para 31).  In addition, as noted by the Court of Appeal, the court is given further powers in s. 5 of the Trustee Act, RSO 1990, c T. 23, to appoint a new trustee, whether as a replacement or additional trustee and even if there is no current trustee. Finally, the Court of Appeal has already held that the Superior Court of Justice has an inherent power to remove a trustee where circumstances require it (Gonder v. Gonder, 2010 ONCA 172).

The appellant argued that although the Superior Court of Justice has an inherent power to refuse to grant the CAET, it is limited by s. 29 of the Estates Act.  The appellant argued that s. 29 requires an application judge to allow the application for a CAET when it is supported by the persons who are entitled to apply to act as estate trustee.  The Court of Appeal disagreed.  It found that s. 29 is permissive and that the Superior Court of Justice retains its discretion even if an application is unopposed “due to the inquisitorial nature of the court’s role in estate proceedings, and its gatekeeping and oversight functions with respect to the appointment of trustees.” (at para 43).

In James Estate, the concerns of the application judge that the appellant may be engaged in the practice of law was not allayed by the beneficiaries’ notice of motion. The application judge concluded that allowing the appellant to act as estate trustee would not promote confidence in the administration of justice and dismissed the application.  It was within the court’s discretion and inherent jurisdiction to do so.