Thursday, April 3, 2014

Removal and appointment of estate trustees

Di Michele v. Di Michele, 2014 ONCA 261:

[84]          The court will remove an estate trustee only if doing so is clearly necessary to ensure the proper management of the trust: Re Weil, [1961] O.R. 888 (C.A.), at p. 889.  Situations in which removal may be justified include where the estate trustee has acted in a way that has endangered the trust property or otherwise shown a lack of honesty, proper capacity, or reasonable fidelity: Letterstedt v. Broers (1884), 9 A.C. 371 (P.C.), at pp. 385-86; Bathgate v. National Hockey League Pension Society (1994), 16 O.R. (3d) 761 (C.A.), at p. 778.


[87]          As a general rule, a person will not be appointed as a trustee if that person's duties as trustee would conflict with either his or her personal interests or duties which that person has undertaken apart from as trustee: see Re Parsons, [1940] Ch. 973, at p. 983; Re Moorhouse, [1946] 4 D.L.R. 542 (Ont. H.C.), at p. 544; andRe Becker (1986), 57 O.R. (2d) 495 (Surr. Ct.), at pp. 498-99.

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