An executor should only be passed over based on the 'clearest of evidence:' court
In a recent decision, the Ontario Superior Court of Justice addressed an estate dispute between two sisters over their late mother's property, leading to one being passed over as an estate trustee.
The issue in Sassano v. Iozzo, 2024 ONSC 1517 concerns an estate dispute involving Carmelina Sassano and Giuseppina Iozzo, daughters and appointed executors of the estate of Concetta Norina Sassano, who passed away in 2011.
At the heart of the dispute was the principal asset of the estate, a property located at 211 Gilbert Avenue, Toronto, Ontario, which Carmelina, following her divorce in 1985, shared with her late mother. Carmelina also provided care and support to her mother until she passed away. Despite their mother's will allowing Carmelina to reside at the property under certain conditions, the relationship between the sisters soured, leading to a lack of communication since 2012 and a dispute over the estate's administration.
Carmelina petitioned the court for various reliefs, including removing her sister Giuseppina as an executor and trustee of the estate or allowing Giuseppina to be deemed as having renounced these roles. Despite being properly served, Giuseppina did not appear in the application, leading the court to deliberate based on the presented evidence and applicable legal principles.
The court, acknowledging the inherent jurisdiction to remove trustees, emphasized that an executor should only be passed over based on the "clearest of evidence" and in circumstances where their actions are detrimental to the estate's welfare. The court noted the precedence in case law for passing over estate trustees who fail to act in estate administration.
Given the evidence of Giuseppina’s inactivity and lack of cooperation, the court found it necessary to pass her over as an estate trustee to ensure the estate's proper administration, including the sale of the property. The court made this decision with the welfare of the beneficiaries, particularly Camelina, in mind, recognizing her physical challenges and financial limitations in maintaining the property.
Furthermore, the court ordered Carmelina’s application costs to be paid out of Giuseppina’s share of the estate. In awarding costs, the court considered the need for the orderly administration of the estate and the detrimental impact of Giuseppina’s failure to engage in her duties as co-executor.
