This blog post was co-authored by Latoya Brown, Associate, and Madison Milanczak, Student-at-Law, at Fasken LLP.
Appointing multiple estate trustees requires more thought than simply choosing who will act. It also requires considering how decisions will be made when they disagree. A majority-rules clause may help, but it offers no solution to an evenly divided vote. In Childs v. Childs, 2026 ONSC 801, that gap, combined with longstanding family conflict, led the court to pass over all four named trustees and appoint an independent professional.
Eileen Childs’ 2009 will appointed her four children as executors, with disagreements to be decided by a majority. By the time of her death on March 1, 2025, more than a decade of guardianship litigation had divided the siblings: Michael and Andrew on one side, Peter and Caroline on the other. Hundreds of thousands of dollars in legal fees had significantly depleted their mother’s assets.
After their mother’s death, the siblings had taken some preliminary steps in administering the estate, including paying expenses and notifying financial institutions. Important work nevertheless remained: obtaining probate, addressing the guardian of property’s application to pass accounts, implementing outstanding costs awards and distributing the estate. Michael applied to have all four siblings passed over as estate trustees, including himself, and to appoint a neutral professional. Andrew supported the application, while Peter and Caroline opposed it.
Why the court intervened
In deciding whether to appoint an independent estate trustee, Justice Mew identified two principles that must be balanced. First, courts have an inherent power to remove a trustee when circumstances require, citing Gonder v. Gonder Estate, 2010 ONCA 172, at paragraph 26. Second, a testator’s choice of trustee deserves respect. Justice Mew relied on Chambers Estate v. Chambers, 2013 ONCA 511, at paragraph 95, which cautions against lightly interfering with that choice. As Justice Mew explained, “an executor should not be removed or passed over unless there is a clear necessity for doing so to ensure the proper administration of the estate.”[1] This may be necessary where an executor’s personal interests conflict with their fiduciary duties, or where animosity or conflict with co-executors or beneficiaries risks compromising estate administration.
Although Justice Mew commended all four siblings for the preliminary steps they had taken, their affidavits and submissions revealed deep-seated mistrust between the two groups. He observed that time had hardened, not healed, their differences. The majority-rules clause could resolve a three-to-one disagreement, but the siblings repeatedly divided two against two, and the will contained no tie-break mechanism.
The court found that the animosity and conflict were themselves sufficient to justify passing over the siblings. There was also a genuine concern that the accumulated costs awards against Peter and Caroline, to be satisfied from their estate shares, would compromise their ability to administer the estate in the interests of all beneficiaries.
The expense of a professional trustee did not change the result. Justice Mew acknowledged that professional fees would reduce the beneficiaries’ distributions. Against the family’s history of substantial litigation costs, however, he considered it highly likely that a neutral appointment would better serve the beneficiaries and their eventual inheritances.
Justice Mew therefore passed over all four siblings and appointed an estates lawyer as estate trustee to administer the estate in accordance with the will and receive appropriate compensation.
What this means for estate planning
The lesson is not that every disagreement warrants replacing estate trustees. The court’s concern extended beyond voting mechanics to entrenched conflict and competing personal interests. Still, the decision exposes a practical weakness: majority rules is not a complete answer when no majority can be reached.
For estate planning, three questions are worth asking:
- Can these trustees realistically work together? An odd number of trustees may reduce the risk of an evenly split vote, but it cannot cure hostility or conflicts of interest. Depending on the family and the estate, appointing fewer trustees or an independent professional from the outset may be preferable.
- What happens if the vote is tied? Where multiple trustees are appointed, consider whether the will should include an “umpire” or tie-breaker clause. The drafting should identify who can resolve a deadlocked decision, which decisions the mechanism covers and how the resulting decision is implemented. Simply encouraging cooperation may leave the central problem unresolved.
- Will the mechanism still work if the tie-breaker cannot act? Address how that person will be selected or replaced. Trustee appointments and decision-making provisions should also be revisited if family relationships deteriorate while the testator/testatrix remains capable of updating the will.
A majority-rules clause can help estate trustees resolve disagreements, but only if a majority can be reached. Childs illustrates what can happen when that mechanism falls short: where deadlock and entrenched conflict threaten proper administration, the court may pass over the trustees the testator selected and appoint someone independent.
