O’Neill v. O’Neill, 2025 ONSC 2892

O’Neill v. O’Neill, 2025 ONSC 2892

Court File No.: CV-24-00003408-0000
Date: 2025-05-14
Ontario Superior Court of Justice

BETWEEN:
Daniel O’Neill and Wanda O’Neill, Applicants
– and –
Lillian Dianne O’Neill and Andrea O’Neill, Respondents

Appearances:
Melanie Williams, for the Applicants
William Doodnauth, for the Respondents

Heard: By Written Submissions

Reasons for Judgment
Robyn M. Casullo

Overview

1This matter concerns the estate (the “Estate”) of Lillian Mary O’Neill (“Lillian”), who passed away on June 4, 2020.

2The Applicants bring this application for, inter alia, an Order removing the named Estate Trustees, guidance as to an appropriate successor trustee(s), and an Order requiring the named Estate Trustees to pass their accounts.

3Given the potential for confusion, once they have been identified, I will use the parties’ given names throughout these reasons. No disrespect is intended.

Background

4Lillian was married to Andrew Bertram O’Neill, who predeceased her in 2003.

5Lillian was survived by her five children:

• Theresa Margaret Grayson (“Theresa”)
• William Frederick O’Neill (“William”)
• Daniel Alexander O’Neill (“Daniel”)
• Lillian Dianne Glover (“Dianne”)
• Andrea Kathleen O’Neill (“Andrea”)

6In the event Lillian’s husband predeceased her, Lillian’s five children would share equally in the residue of her Estate. In the event of the death of one of the residual beneficiaries, their share would be divided amongst their children.

7The Applicant, Wanda O’Neill, was the spouse of William, who passed on February 14, 2024.

8Andrea and Dianne, the named Estate Trustees under Lillian’s will, were appointed Estate Trustees with a Will on November 17, 2021. The Will did not provide that Andrea and Dianne could act severally.

9The primary asset of the Estate is the duplex located at 28218 Highway 48, Pefferlaw, Ontario (the “Property”) with two separate living quarters. On one side lived Lillian and Andrew (prior to her admission into a long-term care facility and Andrew’s death), along with Daniel and even Andrea for a time. For many years, the other side was occupied by Dianne, Larry McBride (who is alleged to be Dianne’s common-law husband, although Dianne denies this), and Dianne’s adult son, Christopher Glover.

10Daniel was evicted from his side of the Property in 2021, following which Andrea and her husband moved in.

11Thus, since at least 2021, the Respondents have lived at the Property. The Respondents do not pay occupation rent.

12In November 2023, the Applicants learned that Andrea and the Estate were named as defendants in an unrelated action commenced by Pace Savings and Credit Union (“Pace”). Andrea was employed by Pace. The Statement of Claim explicitly names Lillian’s Estate as a defendant, alleging fraudulent activity involving Lillian in connection with accounts belonging to Larry McBride. The plaintiff in that action intends to seek a certificate of pending litigation.

13It is suggested that at the time Lillian was allegedly involved with Pace, she was incapable. This remains to be determined.

14Despite the passage of time, no defence has been filed on behalf of the Estate.

15Also in November 2023, the Respondents advised the Applicants that Theresa would be taking over the role of Estate Trustee. No steps were taken in this regard, and one year later Theresa advised she was declining the appointment.

16Upon receipt of the Application Record, Andrea stepped down as Estate Trustee by way of a letter from her counsel.

17With respect to the Property’s value, appraisals were done in July 2023 and March 2024, showing a value range of approximately $875,000.

18No significant administration has been conducted in respect of the Estate since Lillian’s passing.

Positions of the Parties

19The Applicants submit that the Estate Trustees continue to hold the assets of the Estate for their sole use and benefit, without regard to the other beneficiaries. Given the passage of time, the lack of administration, and the lack of transparency in respect of the Estate, the Estate Trustees have failed in their duties. Accordingly, permitting Dianne to remain as Estate Trustee (assuming the court accepts Andrea’s renunciation) would be unfair.

20The Respondents oppose the relief sought. Dianne submits that she has neither abused her discretion nor been found guilty of misconduct. Contrary to the allegations of the Applicants, she distributed certain of Lillian’s items, including the grandfather clock, a china cabinet, the dining room buffet, towels, musical instruments, etcetera. She has also provided documentation related to expenses and the status of the Estate. Finally, Dianne submits that she has acted in the best interests of the Estate.

Legal Framework

21Pursuant to sections 5 and 37 of the Trustee Act, RSO 1990, c T.23, any person interested in the estate may bring a motion to remove and replace an estate trustee.

22An estate trustee named in a will should only be removed in the “clearest of evidence that there is no other course to follow”: Crawford v. Jardine, [1997] O.J. No. 5041 (Ont. Gen. Div.), at para. 18.

23The court in Radford v. Radford Estate, paras. 97-113, 43 E.T.R. (3d) 74 (Ont. S.C.), set out the principles to be considered by a court when determining whether an estate trustee should be removed. These principles were summarized in Johnston v. Lanka, 2010 ONSC 4124, para. 15, as follows: (1) the court should not interfere lightly with the testator’s choice of trustee; (2) any interference should be well justified and clearly necessary; (3) the court’s main focus should be on the welfare of the beneficiaries; and (4) the estate trustee’s acts or omissions must have been of such a nature as to endanger the administration of the trust.

24An estate trustee is not held to a standard of perfection. The test is not whether they have executed their functions perfectly or ideally: St. Joseph’s Health Centre v. Dzwiekowski, at para. 25. However, past misconduct may justify removal if it is likely to continue in the future.

Discussion

25In this case, nothing quite passes the smell test, and it is readily apparent that the court’s assistance is necessary to ensure the efficient and forward movement of this Estate’s administration.

26First, the named Estate Trustees are all over the map in terms of whether they were prepared to act or not. Because Andrea is somehow connected to Lillian’s involvement with Pace, she renounced her position as Estate Trustee. Yet that was at least three years after being appointed, by which time Andrea had already intermeddled with the Estate. There was no application to obtain court approval for her removal.

27Furthermore, Dianne decided she would hand over the reins to Theresa once the litigation came to light. This resulted in the Estate languishing for a further year until Theresa advised she would not accept the appointment. An appointment that had never been applied for. Dianne then decided that she would resume her duties.

28However, Dianne is in a conflict position vis-à-vis the Estate. The Pace litigation is in respect of accounts belonging to Larry McBride. Whatever position he holds in Dianne’s life, there is a clear connection between the two, and Dianne cannot act at arm’s length. Having renounced once (although not formally), the potential for a future renunciation creating further delay is not beyond the realm.

29Dianne submits that there have been efforts to purchase the Property from the Estate, which is some evidence of estate administration. However, these offers were not based on fair market value, but rather on what the Estate Trustees could afford. This is not the mark of a neutral Estate Trustee. This is the mark of an Estate Trustee putting her interests ahead of the beneficiaries.

30The Respondents argue that the Applicants have not been prejudiced by the delay in the Estate’s administration. To the contrary, the Estate Trustees submit that the value of the Property has increased significantly since 2020, which is a benefit to all concerned.

31This argument strikes a hollow chord. First, William, one of the five beneficiaries, passed before he received his share of the residue. The court was advised that he was ill and could have used his inheritance to make his final years more comfortable. Second, an estate trustee’s mandate has never been to hold the administration of an estate hostage in the hopes of increasing its value.

32The Respondents conceded that the delay in administering the Estate has gone on for too long. In her affidavit, Dianne proposes a plan to administer the Estate moving forward, including getting the Property ready for sale. There is no explanation as to why it has taken five years and this Application to actually start the ball rolling.

33In light of the evidence in this particular case, the Estate Trustees’ opportunity to administer the Estate has come to an end. Dianne and Andrea are no longer in a position of neutrality, and I am not confident that, if they were to remain as Estate Trustees, they would administer the Estate in accordance with their fiduciary duties, and with due regard to the interests and welfare of the beneficiaries. The only reasonable course of action in these circumstances is to remove them as Estate Trustees.

34I make this finding with the full knowledge that a testator’s choice of an estate trustee is not to be interfered with lightly.

Passing of Accounts

35Andrea and Dianne owe an obligation to the Estate to pass their accounts and are so ordered.

Alternate Estate Trustees

36The Applicants propose that Julie O’Neill and Karen Wolfe be named succeeding Estate Trustees, as well as Estate Trustees During Litigation. Julie is Daniel’s daughter, and Karen is Wanda’s sister (recall Wanda is the widow of the late William). Both Julie and Karen agree to accept the appointments if made.

37Given that the value of the Estate is modest, ordering a trust company or professional as the replacement estate trustee could deplete the Estate unnecessarily.

38I find that the appointment of Julie and Karen is in the best interests of the beneficiaries. While they are both family members, they are far enough removed not to be pulled into any polarizing family dynamics.

Conclusion

39Andrea and Dianne are removed as Estate Trustees. Julie and Karen are named succeeding Estate Trustees and Estate Trustees During Litigation.

40Andrea and Dianne must pass their accounts from the date of their appointment to the date of the release of these reasons.

Costs

41At the conclusion of the hearing, I asked counsel what they would seek in costs if their clients were successful. Each submitted that they would ask for $2,500.

42The Applicants are therefore awarded costs of the application in the amount of $2,500 plus reasonable disbursements.

Robyn M. Casullo