MacKinnon v. MacKinnon: Can a Court Appoint a Professional Trustee and Validate a Contested Codicil When Named Trustees Fail to Administer Estates for Decades?

Can a Court Appoint a Professional Trustee and Validate a Contested Codicil When Named Trustees Fail to Administer Estates for Decades?

ANSWER: Yes, a court can appoint a professional trustee and validate a contested codicil when named trustees fail to administer estates for decades, as demonstrated in MacKinnon v. MacKinnon, 2025 ONSC 2426. The Ontario Superior Court exercised its authority under sections 5(1) and 37(1) of the Trustee Act to pass over incapacitated and inactive trustees, appointing George Morison as Succeeding Estate Trustee due to the welfare of beneficiaries (Chambers Estate v. Chambers, 2013 ONCA 511; Sassano v. Iozzo, 2024 ONSC 1517). The court also validated a 2005 Codicil, contested by Kimberly, by accepting a non-witness affidavit as “other evidence of due execution” under Rule 74.04(1)(d)(i)(C) of the Rules of Civil Procedure, despite unavailable witnesses, as it complied with section 4(2) of the Succession Law Reform Act. The decision was driven by the trustees’ failure to act for nearly 20 years, the need to resolve complex title issues, and the lack of evidence supporting the codicil challenge.

Full Case Review

The case of MacKinnon v. MacKinnon, 2025 ONSC 2426, decided by the Superior Court of Justice – Ontario, addresses two applications concerning the estates of Robert Wilson MacKinnon and Maxine Roxella MacKinnon.

The applications sought to remove or pass over the named estate trustees, Robert William MacKinnon (William) and Kimberly Jo-Anne MacKinnon, and appoint George Morison as the Succeeding Estate Trustee for both estates. Additionally, the application for Robert’s estate sought validation of a 2005 Codicil, which was contested by Kimberly. The court granted the appointment of Morison, validated the Codicil, ordered an accounting from Kimberly, and awarded costs on a full indemnity basis, split between Kimberly personally and Robert’s estate.

Overview

In MacKinnon v. MacKinnon, 2025 ONSC 2426, the Ontario Superior Court of Justice addressed two applications concerning the estates of Robert Wilson MacKinnon and Maxine Roxella MacKinnon. The applications sought to remove or pass over the named estate trustees, Robert William MacKinnon (William) and Kimberly Jo-Anne MacKinnon, appointing George Morison as the Succeeding Estate Trustee for both estates. Additionally, the application for Robert’s estate requested validation of a 2005 Codicil, opposed by Kimberly. The court granted Morison’s appointment, validated the Codicil, ordered Kimberly to provide an informal accounting, and awarded costs on a full indemnity basis, split between Kimberly personally and Robert’s estate. The decision highlights judicial intervention to resolve long-delayed estate administration and evidentiary standards for testamentary documents.

Facts

• Parties and Estates: Maxine Roxella MacKinnon died on April 30, 2003, followed by her husband, Robert Wilson MacKinnon, on October 11, 2006. Their children, William (Applicant, incapacitated by severe dementia) and Kimberly (Respondent, self-represented), survived them. Bobbi-Jo MacKinnon, William’s daughter, acted as his Litigation Guardian under a Continuing Power of Attorney dated June 17, 2020.
• Key Asset: The estates’ primary asset was a cottage at 63 Dwire Road, Ontario, acquired by William in 1981 and transferred in 1983 to William and Maxine as tenants in common, each holding a 50% interest. Maxine’s 50% interest passed to Robert upon her death.
• Wills and Codicil:
  • Maxine’s Will (October 23, 1998) named Robert as Estate Trustee, with William and Kimberly as alternates. It bequeathed her estate, including her 50% cottage interest, to Robert; if Robert predeceased, her cottage interest went to Kimberly, with the residue split equally between William and Kimberly.
  • Robert’s Will (October 23, 1998) mirrored Maxine’s structure.
  • Robert’s Codicil (September 27, 2005), handwritten by his sister Elizabeth Badour and witnessed by neighbors Debra and Robert Mathison, bequeathed his 50% cottage interest (inherited from Maxine) to William.
• Codicil Execution: The Codicil, not in holograph form, complied with section 4(2) of the Succession Law Reform Act, signed by Robert in the presence of two witnesses. The Mathisons did not provide affidavits of execution and could not be located despite efforts. Elizabeth Badour, present at the signing, swore an affidavit on November 9, 2023, attesting to its execution.
• Estate Administration: Neither estate was administered. No Certificates of Appointment of Estate Trustee were issued, and Maxine remained on the cottage title over 20 years post-death. William’s dementia rendered him incapable of acting as trustee. Kimberly promised on February 7, 2024, to administer the estates but took no action and ceased communication with Bobbi-Jo and her counsel.

The Law

The court applied the following legal principles:

• Removal/Passing Over of Estate Trustees:
  • Sections 5(1) and 37(1) of the Trustee Act, RSO 1990, c T.23 empower courts to remove or replace trustees, including estate trustees.
  • The test for passing over mirrors removal, requiring “clearest evidence” that no alternative exists (Chambers Estate v. Chambers, 2013 ONCA 511, paras. 95–96). Courts respect the testator’s choice unless conflicts of interest, incapacity, or inaction necessitate intervention (Ford v. Mazmann, 2019 ONSC 542, para. 18).
  • The welfare of beneficiaries is paramount (Sassano v. Iozzo, 2024 ONSC 1517, para. 14; Kinnear v. White, 2022 ONSC 2576, para. 15).
• Validation of Testamentary Instruments:
  • Rule 74.04(1)(d)(i)(C) of the Rules of Civil Procedure requires an affidavit of execution for non-holograph wills or codicils, or “other evidence of due execution” if witnesses are unavailable.
  • Section 4(2) of the Succession Law Reform Act mandates that non-holograph testamentary instruments be signed by the testator in the presence of two witnesses who also sign.
  • Rule 75.06 allows courts to direct proof of a testamentary instrument’s validity.
• Accounting:
  • Rule 74.15(1)(d) of the Rules of Civil Procedure permits courts to order informal accountings of estate assets and actions.
• Costs in Estate Litigation:
  • Costs follow civil litigation rules under section 131 of the Courts of Justice Act, RSO 1990, c C.43 and Rule 57, unless public policy considerations—such as ensuring valid wills or proper estate administration—apply (Sawdon Estate v. Sawdon, 2014 ONCA 101, paras. 84–86).
  • Where litigation arises from testator-caused issues, costs may be borne by the estate to avoid deterring trustees (Sawdon, para. 86).

Analysis

• Appointment of Succeeding Estate Trustee:
  • The court found “clearest evidence” to pass over William and Kimberly. William’s incapacity and Kimberly’s inaction for nearly two decades (despite urging and promises) justified intervention (Chambers Estate, paras. 95–96; Kinnear, para. 15). Kimberly’s consent at the hearing did not negate her prior failure to act.
  • The welfare of beneficiaries, including William’s entitlement to the cottage, supported appointing a professional trustee (Sassano, para. 14). The prolonged non-administration and complexity of resolving title issues (Maxine still on title) necessitated Morison’s appointment.
• Codicil Validation:
  • The Codicil met section 4(2) requirements, but the Mathisons’ unavailability required “other evidence” under Rule 74.04(1)(d)(i)(C). Elizabeth Badour’s affidavit, attesting to the execution, sufficed as Can a Court Appoint a Professional Trustee and Validate a Contested Codicil When Named Trustees Fail to Administer Estates for Decades? was deemed sufficient, despite Kimberly’s unsupported authenticity concerns. The court rejected her challenge due to lack of evidence, prioritizing the testator’s intent (Sawdon, para. 84).
  • This ruling underscores that non-witness affidavits can satisfy execution requirements when witnesses are unavailable, provided the evidence is credible.
• Accounting:
  • The court ordered Kimberly to provide an informal accounting of Robert’s estate from his death to the order date, citing Rule 74.15(1)(d). This addressed the lack of transparency, given the cottage’s significance and potential other assets. No accounting was required for Maxine’s estate pre-Robert’s death, as Robert was the executor.
• Costs:
  • The court applied Sawdon principles, balancing civil litigation cost rules with estate-specific public policy. The litigation was necessary due to the trustees’ inaction, a testator-related issue, justifying estate-funded costs. However, Kimberly’s opposition until the hearing increased expenses, warranting personal liability.
  • Costs were fixed at $29,128.86, split equally: $14,564.43 from Kimberly personally and $14,564.43 from Robert’s estate (likely impacting William, the cottage’s beneficiary). This allocation reflected fairness, acknowledging both systemic delays and Kimberly’s role in prolonging the dispute.

Lessons Learned

• Timely Estate Administration is Critical: Delays in administering estates, as seen with Maxine’s title lingering for over 20 years, complicate asset distribution and increase litigation risks. Named trustees must act promptly or risk court intervention.
• Judicial Discretion in Trustee Removal: Courts prioritize beneficiary welfare and may bypass named trustees for incapacity or inaction, favoring professional trustees when complexity arises (Chambers Estate; Sassano).
• Evidentiary Flexibility for Testamentary Instruments: Non-witness affidavits can validate non-holograph codicils if execution is credibly attested, lowering barriers when witnesses are unavailable (Succession Law Reform Act, s. 4(2)).
• Costs Reflect Conduct and Context: Estate litigation costs may be split between estates and parties based on necessity and behavior. Opposition without evidence can lead to personal liability (Sawdon).
• Proactive Communication Avoids Disputes: Kimberly’s cessation of communication exacerbated the conflict. Open dialogue among beneficiaries and trustees can prevent costly legal battles.

This case illustrates the courts’ role in resolving estate administration failures, ensuring testator intent, and balancing fairness in cost allocation, offering practical guidance for estate planning and litigation.

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