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
[1] This matter concerns the estate (the “Estate”) of Lillian Mary O’Neill (“Lillian”), who passed away on June 4, 2020.
[2] The 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.
[3] Given the potential for confusion, once they have been identified, I will use the parties’ given names throughout these reasons. No disrespect is intended.
Background
[4] Lillian was married to Andrew Bertram O’Neill, who predeceased her in 2003.
[5] Lillian 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”)
[6] In 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.
[7] The Applicant, Wanda O’Neill, was the spouse of William, who passed on February 14, 2024.
[8] Andrea 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.
[9] The 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.
[10] Daniel was evicted from his side of the Property in 2021, following which Andrea and her husband moved in.
[11] Thus, since at least 2021, the Respondents have lived at the Property. The Respondents do not pay occupation rent.
[12] In 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.
[13] It is suggested that at the time Lillian was allegedly involved with Pace, she was incapable. This remains to be determined.
[14] Despite the passage of time, no defence has been filed on behalf of the Estate.
[15] Also 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.
[16] Upon receipt of the Application Record, Andrea stepped down as Estate Trustee by way of a letter from her counsel.
[17] With respect to the Property’s value, appraisals were done in July 2023 and March 2024, showing a value range of approximately $875,000.
[18] No significant administration has been conducted in respect of the Estate since Lillian’s passing.
Positions of the Parties
[19] The 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.
[20] The 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
[21] Pursuant 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.
[22] An 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.
[23] The 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.
[24] An 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
[25] In 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.
[26] First, 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.
[27] Furthermore, 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.
[28] However, 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.
[29] Dianne 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.
[30] The 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.
[31] This 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.
[32] The 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.
[33] In 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.
[34] I 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
[35] Andrea and Dianne owe an obligation to the Estate to pass their accounts and are so ordered.
Alternate Estate Trustees
[36] The 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.
[37] Given that the value of the Estate is modest, ordering a trust company or professional as the replacement estate trustee could deplete the Estate unnecessarily.
[38] I 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
[39] Andrea and Dianne are removed as Estate Trustees. Julie and Karen are named succeeding Estate Trustees and Estate Trustees During Litigation.
[40] Andrea and Dianne must pass their accounts from the date of their appointment to the date of the release of these reasons.
Costs
[41] At 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.
[42] The Applicants are therefore awarded costs of the application in the amount of $2,500 plus reasonable disbursements.
Robyn M. Casullo
Released: May 14, 2025