The appointment of an Estate Trustee During Litigation (ETDL) is the Court’s way of stabilizing an estate while the parties fight about it.

The mechanism lives in Rule 75.06(3)(f) of the Rules of Civil Procedure^[1] and in the Court’s inherent jurisdiction. Historically it was also tied to s. 28 of the Estates Act^[2], but modern Ontario cases make clear the power is not confined to classic will-challenge scenarios. The ETDL is a neutral officer charged with preserving, administering, and accounting, without taking sides, until the dispute ends. The order is intrusive, but it is often the least disruptive way to level the playing field when a litigant otherwise controls the levers of the estate.

The Governing Principles

The leading modern statement is Mayer v. Rubin, 2017 ONSC 3498^[3], where Myers J. held that the Court’s power to appoint an ETDL is grounded both in rule 75.06(3)(f) and in inherent jurisdiction, and is aimed at ensuring a “level playing field” during contested estate proceedings. He emphasized that fiduciary duties can be inconsistent with a party’s ongoing litigation interests. Where that mismatch arises, an ETDL may be required to protect the integrity of administration.

Courts have repeatedly described the appointment as a practical, not extraordinary, remedy. In McColl v. McColl, 2013 ONSC 5816^[4], Greer J. appointed a professional ETDL and stated bluntly that a refusal to appoint should be reserved for the “clearest of cases.” The rationale is straightforward. Most estates require someone neutral to hold, preserve, and deal with assets and pay debts while litigation unfolds. In truly simple estate, such as cash and GICs only, the supervision burden may be minimal and an ETDL unnecessary.

The theme of neutrality and fairness runs through Class v. Smith, 2018 ONSC 623^[5], where the Court stressed that neither side should be permitted to weaponize control over estate assets to gain tactical advantage. If a litigant-trustee can use their control over information, banking access, or distribution timing to pressure opponents, the “level playing field” objective is undermined and an ETDL becomes appropriate.

Typical Triggers: Conflict, Confusion, and Asset Risk

Fact patterns that drive ETDL appointments are unsurprising. Conflict of interest by a trustee, whether structural (as both fiduciary and adverse litigant) or situational, regularly justifies interim replacement. In Mayer, the Court inferred that a trustee in an adversarial stance toward a co-trustee or beneficiary should not ordinarily remain in charge of trust property during the fight. “Simple prudence” favoured temporary substitution.

Second, administrative breakdown such as missing records, failure to consult co-trustees or beneficiaries, or inability to marshal and value assets, points toward a neutral appointment. McColl is blunt about the need for professional administration where the estate includes operating businesses and the named trustee lacks capacity or independence to manage them.

Third, escalating costs and acrimony can make an ETDL cost-saving rather than cost-adding. In Kalman v. Pick^[6], 2014 ONSC 2362, McEwen J. observed that appointing an ETDL may actually reduce total spend where friction has already driven significant fees and where a neutral can rationalize decisions, collect information, and restore discipline to the file.

Fourth, asset preservation concerns including a unique property, complex inventories, or cross-border holdings, militate in favour. The Toller Cranston litigation (Baran v. Cranston (In the Estate of Toller James Montague Cranston), 2019 ONSC 3127^[7]) illustrates this well. With a large, valuable, and idiosyncratic art collection and international complications, the Court appointed an ETDL to neutralize control and safeguard value pending resolution.

Threshold, Not a Straitjacket

None of this means the Court rubber-stamps every request. If the estate is truly simple, liquid, and low-risk, and if the trustee is acting transparently and within fiduciary duty, the Court can refuse and use lighter tools (directions, information production, or targeted restraints). McColl expressly recognizes this carve-out. The point is proportionality. The heavier the conflict, opacity, or asset risk, the more an ETDL makes sense.

Process, Powers, and Security

The vehicle is typically an application or motion for directions seeking the appointment under rule 75.06(3)(f). The order will define the ETDL’s mandate, require reporting, and set parameters for transactions and professional retainers. Substantively, an ETDL exercises the rights and powers of a general administrator except for distributing the residue, which is withheld until the merits resolve or the Court authorizes a distribution. Courts can and do require security. They also waive it where a regulated professional trust company is appointed and the risk profile is acceptable.

How Judges Weigh It

Ontario courts undertake a pragmatic, context-driven assessment. Mayer anchors the analysis in inherent jurisdiction and fairness between litigants. Class focuses on disabling the tactical abuse that flows from unilateral control. McColl instructs judges not to over-mystify the remedy and to use it in most contested administrations unless the estate is unusually simple. Kalman adds a cost-control lens that recognizes the savings a neutral can deliver. The common denominator is protection of beneficiaries’ collective interests and public confidence in the administration of justice when an estate becomes the battleground.

Practical Takeaways

If a litigant-trustee controls accounts, information, and timing, and the conflict is sharp enough that fiduciary and litigation interests are pulling in opposite directions, you should expect the Court to appoint a neutral. If the estate is complex or idiosyncratic involving operating companies, art, foreign assets, expect the same. If things are simple, transparent, and low-risk, an ETDL is unlikely. Framed properly, the motion is not an attack on the will-maker’s choice so much as a temporary, conservative measure to protect value and process integrity. That is exactly how the case law applies it.