Andrew Coates, Associate, Gowling WLG (Canada) LLP

Betty Laidlaw contributed an informative two-part series in 2023 regarding “What Happens If Something Happens to Your Executor?” In the second part, Betty explained the process for the alternate executor named in a Will making an application for a Certificate of Appointment of Succeeding Estate Trustee with a Will under Rule 74.06 of the Rules of Civil Procedure in the circumstance where the originally appointed estate trustee dies before the administration of the estate is complete. A different process under Rule 74.14.2 is required to obtain a Court Status Certificate if an estate trustee needs to be replaced as a result of their incapacity before the administration of the estate is complete.

A Court Status Certificate issued under Rule 74.14.2 confirms the status of the estate trustees under the authority of the original Certificate of Appointment of Estate Trustee with a Will. This differs from a Certificate of Appointment of Succeeding Estate Trustee with a Will that acts as a new probate certificate to replace the original Certificate of Appointment of Estate Trustee with a Will that was issued to the original estate trustee(s).

Rule 74.14.2(1) applies when:

(a)  there has been a change of estate trustees as a result of,

(i)  a devolution of executorship on the death of an estate trustee with a will,

(ii)  the death of an estate trustee, if one or more surviving estate trustees continue to be authorized to act, or

(iii)  a court order; or

(b)  there has been no change of estate trustees.

74.14.2(5) further directs:

If the request is for a court status certificate confirming the person or persons acting as an estate trustee under a certificate of appointment after a court has ordered the appointment, removal or replacement of an estate trustee, the request shall be accompanied by a copy of the order.

In plain language, 74.14.2(5) means that if an estate trustee needs to be removed for a reason, like loss of capacity, the over-the-counter application for a Court Status Certificate needs to be preceded by an application commenced under Rule 14.05(3)(c) and subsections 5(1) and 37 of the Trustee Act (Ontario) seeking an order for the removal of the incapable estate trustee and, in some cases, the appointment of a replacement estate trustee (or estate trustees, but for the balance of this post I will use the singular). This is the process whether the incapable estate trustee is the sole estate trustee or co-estate trustee and the capable co-estate trustee seeks to continue on in their role.

Evidence supporting the alleged incapacity of the estate trustee will need to be included in the application, which is typically a finding of incapacity by a doctor by way of letter, report, or medical records. The replacement estate trustee can be an alternate estate trustee named in the Will or another person desiring to act as estate trustee who can substantiate their suitability to act to the court’s satisfaction.

It is essential that the replacement estate trustee seeks an order to dispense with bond as part of the application. If bond is not dealt with as part of the application, then the Estates Court Staff Procedures Manual requires that a new Certificate of Appointment of Succeeding Estate Trustee with a Will must be applied for under the aforementioned Rule 74.06, which is a different process altogether.