Court File and Parties

Court File No.: CV-24-00000217-00ES Date: 2025-11-10 Superior Court of Justice - Ontario

In the Matter of the Estate of Zelia Maria Andrade, Deceased

Re: Evelina Raimundo and Natalia Jesus Monaco, Applicants

And: Fernando Andrade, Shannon Durno in her capacity as Estate Trustee of the Estate of Zelia Maria Andrade, Cidalia Maria Andrade, Manuel Francisco Andrade, Bruno Andrade and William Andrade, Respondents

Before: J. Di Luca J.

Counsel: Michael Bolotenko, Counsel for the Applicants Fernando Andrade – self represented

Heard: October 28, 2025

Endorsement

Overview

[1] The applicants seek the Court's directions on two issues:

a. Whether Shannon Durno, the currently named estate trustee, should be removed or passed over; and,

b. Whether the Court should appoint Aleksandr Bolotenko as the succeeding estate trustee.

[2] The applicants and all but one of the beneficiary respondents agree with the proposed outcome. The respondent, Ms. Durno, is clear that she no longer wishes to act as estate trustee, though she takes no position regarding who should succeed her.

[3] The remaining respondent, Fernando Andrade, is opposed on the basis that the proposed estate trustee would be in a conflict of interest. In his submissions before the Court, he took issue with the validity of the process, offered his views on the character of the parties, and conveyed distinct displeasure with the outcome of an earlier proceeding where his objection to the validity of the deceased's last will and testament was dismissed. He confirmed that he will be taking this matter to a higher court.

Should Shannon Durno Be Removed or Passed Over?

[4] Zelia Maria Andrade died on May 25, 2024. She had a last will and testament dated October 11, 2018, which had been drafted by Ms. Durno. This will appointed Ms. Durno to act as estate trustee. The will did not make provision for an alternate or substitute estate trustee.

[5] A couple of months after the deceased passed away, Ms. Durno retained Aleksandr Bolotenko Professional Corporation ("ABPC") to help her in administering the estate.

[6] Fernando Andrade initially retained counsel, who exchanged correspondence with ABPC. Later, acting on his own, Fernando Andrade filed a notice of objection against Ms. Durno's appointment as estate trustee.

[7] Out of an abundance of caution, Ms. Durno terminated her retainer with ABPC and retained LawPRO Counsel.

[8] At the same time, the applicants retained ABPC to seek to have the court vacate Fernando Andrade's notice of objection. No issues regarding conflicts were raised at this time.

[9] On June 23, 2025, Speyer J. heard the application to vacate the objection. The application was granted, the objection was vacated, and costs were ordered against Fernando Andrade.

[10] Throughout this process, Ms. Durno has sought to be removed as estate trustee. Simply stated, she is unwilling to act. This is a considered and final position.

[11] In terms of process, the applicants note that if Ms. Durno never acted in her capacity as estate trustee, she should be passed over and Mr. Bolotenko should be appointed. Alternatively, if Ms. Durno did act in that capacity, she should be removed, and Mr. Bolotenko appointed as the succeeding estate trustee.

[12] In the materials filed, the applicants accept that Ms. Durno acted in her capacity as estate trustee, though to a very limited extent. She retained ABPC to help her administer the estate and engaged in correspondence with Fernando Andrade. She also took some steps to defend against the will challenge.

[13] In these circumstances, the evidence suggests that she did take some steps as estate trustee. In the language of the caselaw, she has "intermeddled" with the estate, and as a result, is not in a position to renounce her position, see Chambers Estate v. Chambers, 2013 ONCA 511.

[14] There is no issue that a court has jurisdiction to remove a trustee who is unwilling or unable to act, see Evans v. Gonder Estate, 2010 ONCA 172 at para. 24, Pierce v. Zock, 2019 ONSC 4156; and Trustee Act, s. 37(1) and s. 5.

[15] The court cannot force an unwilling estate trustee to act. That is the case here. Ms. Durno will be removed as estate trustee.

Should Aleksandr Bolotenko be Appointed as Succeeding Estate Trustee?

[16] Generally speaking, whenever the court removes an estate trustee, it must also appoint a succeeding trustee in order to ensure the proper administration of the estate.

[17] In this case, Aleksandr Bolotenko is willing to undertake the role. He is counsel who practices in this area of law and has significant experience acting as an estate trustee.

[18] All of the beneficiaries, except Fernando Andrade, are content that he assume this role. As indicated, Fernando Andrade is opposed. In communication he had with the applicants, he alleges that Aleksandr Bolotenko will be in a conflict if he assumes this role.

[19] The applicants have fairly placed the conflict issue before the court for directions. They submit that Aleksandr Bolotenko is not in any disqualifying conflict of interest. While his law firm was initially retained to assist the estate trustee and later retained to represent the applicants on the will objection application, they submit that he is able to act impartially and objectively, and in the best interests of all of the beneficiaries.

[20] Estate trustees may be removed on the basis of conflict where there exists a conflict of interest between the trustee's interests and their duties as trustee, or where they must inevitably weigh their personal interests against the interests of the beneficiaries, see Sasso v. Sasso, 2021 ONSC 3259 at para. 60.

[21] In this case, there is no risk that Mr. Bolotenko will be in a personal conflict of interest. He is not a beneficiary. His task is to administer the estate on behalf of the beneficiaries.

[22] As well, Mr. Bolotenko is not acting against a former client. Indeed, Fernando Andrade was never his client. As such, there is no risk of misuse of confidential information.

[23] While Mr. Bolotenko's firm acted on behalf of the applicants on the earlier application to vacate the objection, the applicants are content that he assume the role of succeeding estate trustee. They do not suggest that he would be acting in conflict against them.

[24] The only potential issue is that in his capacity as succeeding estate trustee, Mr. Bolotenko would owe a duty to all the beneficiaries equally. His firm would also continue to have a duty of loyalty to the firm's former clients, the applicants. While this could conceivably create challenges, I am satisfied that there is no risk of conflict here.

[25] As a succeeding estate trustee, Mr. Bolotenko's role is not qua counsel. His role is to administer the estate to the benefit of the beneficiaries and in accordance with the terms of the will. His firm's clients, the applicants, and all the remaining beneficiaries except Fernando Andrade are content that he assume this role. He will be accountable for the steps he takes in fulfilling this role. He clearly appreciates that nature of his role and the duties engaged. There exists little, if any, risk of conflict in these circumstances.

[26] Lastly, I note that despite being given an opportunity, Fernando Andrade has declined to suggest an alternative estate trustee. His main concern appears to relate to the fact that Speyer J. ruled against him and vacated his objection.

[27] Mr. Bolotenko will be appointed succeeding estate trustee.

[28] The parties may make brief written costs submissions, no longer than three pages excluding proper appendices. The applicants' submission will be due 15 days after the release of this endorsement. The respondents shall have 30 days from the release of this endorsement.

J. Di Luca J.

Date: November 10, 2025