J.W. Quinn J.

Executors are judged not on perfection but on whether they administer estates competently, impartially, and in a timely manner. For beneficiaries, any delay can feel like misconduct. For courts, the legal standard is more precise. The welfare of the beneficiaries is the guiding consideration, and removal is only ordered when continuation of the executor in office would endanger the proper administration of the estate. The dividing line between inefficiency and breach of duty is therefore critical.

The framework begins with Radford v. Wilkins, 2008 CanLII 45548 (ON SC)^[1], where Quinn J. emphasized that the welfare of the beneficiaries is the court’s main guide, that removal requires clear necessity, and that the focus is not punishment for past mistakes but whether the executor’s continuation will jeopardize the future administration of the estate.

Earlier authority in Re Weil, 1961 CanLII 157 (ON CA)^[2] reflects the same restraint, holding that an executor should be removed only on the “clearest of evidence”. The Court of Appeal’s decision in Chambers Estate v. Chambers, 2013 ONCA 511^[3] further clarified that “passing over” an executor before appointment is distinct from removing one after appointment, but in both contexts the testator’s choice is given deference unless hostility or dysfunction would compromise due administration.

The statutory foundation is found in s.37 of the Trustee Act, RSO 1990, c T.23^[4], which authorizes the court to remove and replace trustees. Procedurally, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194^[5], especially Rules 74.15 and 75.06, provide the tools for orders to pass accounts and for directions.

What amounts to inefficiency

Delays that are explainable, documented, and fixable generally do not cross into breach. Courts often tolerate administrative lag in producing accounts or completing tax filings, provided the executor responds once pressed. The remedy in such cases is an order to pass accounts under Rule 74.15, not removal. Similarly, personality conflicts or hostility alone are insufficient unless they impair the actual administration of the estate, as confirmed in Radford. Even cautious pacing, such as delaying a sale until market conditions improve, should be justifiable if it is a reasoned decision communicated to beneficiaries. Courts will intervene with timetables or directions, but they will not normally treat these kinds of inefficiencies as grounds for removal.

When delay becomes breach

Delay crosses into breach when it endangers estate assets, timelines, or the impartiality of administration. The Court of Appeal has repeatedly affirmed that removal is justified where conflicts compromise fiduciary judgment.

Recently, in Muscat v. Muscat Estate, 2025 ONCA 518^[6], the court upheld the removal of trustees whose conflicts of interest tainted their decision-making and also imposed personal costs against them

In another 2025 case, MacBeth Estate v. MacBeth, 2025 ONCA 360^[7], the trustees were removed after selling a family cottage without notifying the beneficiary, triggering an avoidable capital gains tax liability. The Court of Appeal upheld their removal and imposed a personal cost award, stressing that the estate is not a blank cheque for trustees pursuing misguided or self-interested strategies.

Another instructive case is Gonder v. Gonder Estate, 2010 ONCA 172^[8], where the Court of Appeal held that removal must always preserve continuity of administration. Displacing a sole trustee without ensuring an orderly succession was an error. The focus must remain on protecting the estate’s future, not just sanctioning past conduct.

Persistent refusal to account may also treated as a breach. While the first step is usually a court order compelling the passing of accounts under Rule 74.15, repeated defiance will justify removal, since such conduct endangers transparency and beneficiary rights.

Judicial management of the “grey zone”

Courts often intervene with targeted orders before resorting to removal (See my blog “When the Shoe No Longer Fits: Removing an Executor in Ontario”^[9]).

Orders for directions under Rule 75.06 allow judges to impose timetables, clarify sale processes, and create reporting protocols. Orders to pass accounts under Rules 74.15–74.18 force disclosure and restore transparency. Section 37 of the Trustee Act permits adding or substituting trustees to stabilize administration without wholly displacing an executor. These mechanisms reflect a consistent judicial preference to repair the process first, replace only if necessary.

Practical lessons for executors

The case law suggests a number of practical lessons. Executors should maintain a written action plan for key tasks like appraisals, tax filings, and sales, documenting reasons for any delays. Communication is essential. Silence breeds suspicion, while regular updates reassure beneficiaries.

Executors should not hesitate to seek directions from the court if consensus is elusive. Voluntary passing of accounts can defuse tensions before they escalate. Above all, conflicts must be identified and managed. Muscat and MacBeth show that failure to do so can result not only in removal but in personal liability for costs. The guiding question remains that set out in Radford. Does the executor’s continuation put the proper administration of the estate at risk? If the answer is no, delay alone is unlikely to warrant removal.

The conservative rule of thumb

The rule of thumb is straightforward.

Inefficiency amounts to delay that is explainable and remediable with directions or accounting. Breach arises when conduct jeopardizes assets, fairness, or timelines, or when the executor defies court orders and fiduciary standards. Ontario courts are slow to disturb a testator’s choice of trustee, but they will act decisively when administration is endangered.