Last week I blogged about an executor’s ability to renounce his appointment if he doesn’t want to act, which leaves an important question – who administers the estate where there’s a will and no executor willing or able to act? A similar question arises where the deceased dies without a will (an “intestacy”), meaning there was no one named as executor.
Where the deceased died with a will, she may have named an alternate executor. In this case, that individual has the authority to act. However, where there is no one named as alternate executor (or there was no will to begin with) the court must appoint one.
Section 29(1) of the Estates Act provides the court with the authority to appoint an estate trustee where this is an intestacy or where the executor named in the will cannot act. Specifically, s. 29(1) allows the court to appoint the deceased’s (a) spouse/common law partner; (b) next of kin; or (c) spouse/common law partner and next of kin. Where there are more than one individual “equal in degree of kindred” asserting rights as next of kin, the court has the authority to appoint more than one person.
The general practice of the courts has been to prefer the spouse/common law partner’s right to the appointment over that of the next of kin. However, this is not an absolute rule – in Mohammed v. Heera, Justice Warkentin noted that while there might be a “usual” order of priority when determining who should receive the appointment as estate trustee the court maintains an unqualified discretion. This means that the ultimate decision is that of the judge alone.
The practical reality is, as noted above, that where the deceased is survived by a spouse, the court will appoint the spouse unless there is good reason not to do so.