Estate Planning

In an Intestacy, Who Gets to be Estate Trustee?

By Hull & Hull LLP

The recent decision in Mohammed v. Heera involved a dispute over who had the right to be appointed as the estate trustee of the Deceased’s estate. 

The Deceased died intestate and was survived by adult children, a minor grandchild, and an individual who the court determined to be the Deceased’s conjugal partner. 

The conjugal partner took the position that the court should give her priority when determining who should be appointed as executor.  (Interestingly, the partner did not actually intend to apply to be executor as she intended to bring a claim against the estate for support.  Instead she wanted the court to allow her to nominate someone to act in her stead).    

In determining who had first right to be appointed as estate trustee, the court considered s. 29(1) of the Estates Act which provides that when an individual dies intestate, the court can appoint as executor (a) the person to whom the Deceased was married or with whom the Deceased was in a common law relations; (b) the Deceased’s next of kin; or (c) the Deceased’s next of kin and spouse/conjugal partner. 

The court noted that there was little jurisprudence or commentary that indicated that s. 29(1) created a priority system with respect to who should be appointed as an executor in the case of an intestacy. 

It held that while it might well be the usual practice for the court to give a spouse priority when determining who should administer an intestate’s estate, it was not bound to do so.  Moreover, the court referred to s. 29(3) of the Estates Act which provided the court with the ultimate discretion to appoint an executor in the case of an intestacy and decided that finding a priority system existed would unduly constrain the court’s role and detract from its parens patriae jurisdiction. 

Have a great weekend!

Full post as published by Toronto Estate Law Blog on January 23, 2009 (boomark / email).