The Ontario Estates Act at s. 5 contains a clear prohibition: “Letters of Administration shall not be granted to a person not residing in Ontario”. However, like any legal question, this answer can be qualified. The non-resident Estate Trustee can either post a bond or have it waived or reduced in “special circumstances”. The court can also simply reject it outright. The Armstrong case in 2010 illustrates the “flexibility” in the general prohibition, and how a judge will take review all of the circumstances of the Estate to make his or decision. In Armstrong, the local Estates Registrar had refused the appointment due to the prohibition. On request of the Estate Trustee’s lawyer, the question was referred to a judge. Justice Brown allowed a New Brunswick resident to act as Estate Trustee with a Will.
Justice Brown explained “this is a family who has decided, for their own reasons, that Kenneth Greer is the appropriate person to administer the estate of the late William Armstrong and, with the bond, full protection for beneficiaries and creditors has been put in place. Taken together, these facts lead one to ask: why not issue a certificate to Mr. Kenneth Greer?”
It is of note that all beneficiaries consented to the appointment and to waiving the requirement for a bond to be posted (however, bond has already been posted). What would happen if there was a dissenting beneficiary?
Justice Brown also pointed to s. 6 which gives a judge the final discretion if “in the opinion of the judge such security should under special circumstances be dispensed with or be reduced in amount”. Sections 29(1) and (2) gives the court further deference by stating that a decision may be made “as in the discretion of the court seems best.” A judge looking at such a case will likely echo the sentiment of Justice Brown asking “Why not?”, if the circumstances warrant it.
In practical terms, you should always name a resident of Ontario as your Estate Trustee(s). Any non-resident will have to post a bond or file a motion to have the bond waived (and will have to seek approval from the court), which will leave the decision in the hands of a judge. The same applies if you don’t have a Will – it will be even more difficult for a non-resident to be appointed.
For this and any other questions relating to Wills and Estates, please reach out to me through Linked In, marc@listerlawyers.com or 613-234-2500.
