Two Siblings, a Small Estate, and the Fight Over Who Will Be Appointed Estate Trustee

It happens. A parent dies without a will. There are two children, one good, one not-so-good. Your client, with any luck, is the good child. The estate is small, but the battle over who will be appointed estate trustee is mighty.

I recently had exactly this fact situation to deal with. Here is the creative solution I found.

The Story

I will call my client’s mother Mrs. Magpie. She died without a will. Her estate was to be divided between her two daughters. Aside from treasures she had hoarded, Mrs. Magpie owned some costume jewelry and a bank account valued at approximately $44,000.  

As the amount was over $25,000, the bank would not pay out the account to the two daughters without a certificate of appointment of estate trustee (“CAET”). 

One of the daughters, the rogue daughter, was estranged from Mrs. Magpie and the other, good daughter. At the time of Mrs. Magpie’s death, the rogue daughter could not be located and a private investigator was hired to find her. 

My client, the good daughter of course, paid for estate expenses including those related to the funeral such as flowers and a bagpipe performer.  She also carried out all the work for the administration of the estate to date.

Under the law, both daughters were equally entitled to apply to be appointed estate trustee. The two could not agree on who that would be - either one or both, and on what terms. 

The rogue sister first considered joint appointment but with unreasonable terms.  It would have required two sets of lawyer’s fees – one for her lawyer and one for my client. 

She then offered to agree to my client to be appointed estate trustee but only when certain accounting issues were resolved, including the $600 private investigator fees.  

The rogue sister would neither renounce her role as estate trustee, agree to act as sole estate trustee, nor consent to my client to be appointed estate trustee. Yet she did not provide any basis for my client not to be appointed estate trustee.  

My client fulfilled the rogue sister’s requests for some of the deceased’s possessions in order to move the matter forward. 

In these circumstances, the administration of the estate was at a standstill.  My client personally paid the estate expenses and was suffering financially as a result, as well as facing increased legal fees due to the rogue sister’s difficult position.  

Getting the Court Involved

We sought guidance from the Kingston court. The response was that two separate applications would need to be brought. The first would be for an order allowing my client to bring an application for a CAET without a will issued solely to her.  

The second application would be the issuance of the CAET without a will.   

In light of the value of the estate and the legal fees incurred to date, bringing two separate applications was not reasonable.  

Our Solution

We took a chance and combined the information to be put in each separate application into one, expanded and detailed application for a CAET without a will. 

The affidavit sworn by my client, the proposed estate trustee, in support of the appointment was expanded to outline the dispute between the client and the rogue sister. The affidavit included exhibits of all correspondence between counsel and with the rogue sister to show that the issue in dispute with the rogue sister was the accounting and not the role of estate trustee or my client being appointed. 

It was explained that an accounting was part of the administration of the estate and not a factor relevant to whether my client should be appointed estate trustee. The affidavit also promised to serve the complete application record on the rogue sister to give her an opportunity to respond. 

The application record was served in its entirety on the rogue sister, who did not respond.  

Our Happy Almost Ending

The CAET was granted without a court appearance within a few weeks of filing along with an order dispensing with the usual estate administration bond where there is no will.  

Although more legal fees than average for an application for the CAET were incurred, the fees were much less than would have been incurred if two separate applications had to be brought in Kingston.  

The client is quite happy but we are not yet out of the woods….she will still need to account.