During the administration of an estate, a beneficiary may become concerned about the steps taken or proposed to be taken by the estate trustee – for example, liquidating estate assets to distribute cash instead of distributing specific assets such as artwork.
Concerned beneficiaries may bring a Court Application seeking an order that the estate trustee pass accounts before the court – a process that will show the steps they have taken/intend to take and allow the court to examine whether the steps are appropriate. Such an Application often includes a request for the removal of the estate trustee if the accounting indicates misconduct.
Unfortunately, it will take months before accounts are prepared and considered by the Court. In the meantime the estate trustee, with whom the beneficiary has concerns, will be entitled to continue to deal with the estate.
Can anything be done to protect the estate while a beneficiary waits for the Court’s decision?
There are at least two options:
- Request an interim order from the Court preventing the estate trustee from taking any further steps with the estate until the Court has had the opportunity to review the accounts;
- Ask the Court to appoint an estate trustee during litigation to act in the place of the estate trustee. The estate trustee during litigation would be a neutral third party and would typically be given only limited authority to “administer” the estate – no authority to liquidate assets or distribute assets without obtaining direction from the Court.
The extent and quality of evidence required to appoint an estate trustee during litigation is less than the evidence required to remove an estate trustee. The Court can appoint an estate trustee during litigation where, for example, the estate trustee may be a witness in the court proceeding, a conflict of interest exists between the estate trustee and others, or there is a lack of communication from the estate trustee. By contrast, the Court will require clear and cogent evidence that the administration of the estate is at risk before it will remove an estate trustee, which can be a high threshold to meet. This means that it is often easier to obtain an order to appoint an estate trustee during litigation, which would allow the administration of the estate to continue pending the Court’s review of the actions taken by the estate trustee.
If you are a beneficiary and have concerns with how the estate trustee is dealing with an estate, you should consult a lawyer to consider what options may be available to you.
