While estate trustees are not subject to professional regulation, if a lawyer or former lawyer applies for a certificate of appointment, professional regulatory proceedings – either past or present – could be salient to the application, depending on the circumstances.
Lawyers in Ontario are governed by the Law Society of Ontario and subject to the Rules of Professional Conduct.As noted by the English Court of Appeal, the fundamental purpose of professional regulation is "to maintain the reputation of the solicitor's profession as one in which every member, of whatever standing, may be trusted to the ends of the earth:" see Bolton v. Law Society, [1993] EWCA Civ 32.
If an application for a certificate of appointment of estate trustee is submitted by a lawyer who is currently in good standing with the Law Society but has been disciplined in the past, those prior regulatory proceedings could potentially be considered relevant to the application. That said, if the deceased's will expressly appoints the lawyer as estate trustee, it appears that prior discipline will be less salient. As noted in Re James Estate, 2023 ONSC 6432, "the prevailing view is that past misconduct on the part of a trustee is not a basis for a court interfering with a testator's choice of personal representative unless there are grounds for finding that the interests of the estate are likely to be endangered or the estate will not be properly administered."
There also is no principle or rule that automatically precludes disbarred lawyers from acting as estate trustees. However, the court's decision in James Estatedemonstrates that if a former lawyer who has been permanently disbarred applies to be appointed as estate trustee, the court may exercise its inherent jurisdiction to dismiss the application.
In this case, a former lawyer who had been permanently disbarred for participating in or knowingly assisting in dishonest and fraudulent conduct applied to be appointed estate trustee for a friend's estate. Another individual was named as estate trustee in the deceased's will, but that person had renounced the role. The beneficiaries of the deceased's estate subsequently came together to consent to the appointment of the disbarred lawyer as estate trustee.
Despite the beneficiaries' assertion that the disbarred lawyer was the deceased's "long-time friend, confidant and advisor," the application was dismissed. As a disbarred lawyer, the applicant was "no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness." In fact, Justice Mew observed that the application essentially pitched the wishes of the heirs "against the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law," and that the court could not simply allow the application because that is what the beneficiaries wanted.
There was also a significant problem with the materials in support of the application – they indicated that theapplicant may be providing legal services, despite being disbarred for more than a decade. The materials before the court also established that the applicant had assisted with the deceased's will as a "consultant" and that the deceased had also relied on him for other personal, professional and legal matters. In the words of Justice Mew, the materials raised concerns that, prior to the death of the deceased, the applicant's conduct had skirted "around the fringes of the unauthorized practice of law, and quite possibly [crossed] the line completely." The applicant also simply offered no evidence to allay the court's concerns.
It is feasible that the application would have been decided differently had there been no indication that the applicant had previously provided legal advice to the deceased and his family, contrary to his disbarment.
At the end of the day, it appears that the court may exercise its inherent jurisdiction to reject an application for a certificate of appointment of estate trustee submitted by a lawyer subject to discipline if the applicant engaged in the unauthorized practice of law. Time will tell whether the courts may also restrict lawyers subject to less severe disciplinary proceedings from being appointed as estate trustee, or restrict lawyers who are more transparent about their professional activities after being subject to professional regulation. However, as long as the appointment of a disciplined lawyer as estate trustee does not undermine the public's confidence that a lawyer is "a person of unquestionable integrity, probity and trustworthiness," as per Bolton v. Law Society, such an appointment arguably ought to be permitted.
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