Minor Beneficiaries, Consents, and Conflicts of Interest

If you are the applicant for a Certificate of Appointment of Estate Trustee (CAET) you may be required to obtain a consent from a minor beneficiary to your proposed appointment as Estate Trustee. Most often these kinds of consents are required when the deceased passed away without a will. The court will accept a consent signed by the minor’s parent or guardian. But what if you are both the parent or guardian rightfully signing the minor’s consent and the applicant for the CAET? In this scenario, there is a conflict of interest between your desire to be appointed the estate trustee and your role as a parent or guardian signing a consent to the same appointment on behalf of the minor. Essentially, you are consenting to your own appointment as estate trustee. The court may take issue with the conflict of interest present in your scenario.

In some cases, you will also request that the bond required under the Estates Act be dispensed with by the court. To this end, the beneficiary consent will not only include their consent to the appointment but also to the dispensing of the bond requirement. This only adds to the conflict of interest problem that already exists.  

In order to request the dispensing of the bond, you will need to submit a supporting affidavit explaining the circumstances of the estate. Your affidavit should show your knowledge or explanation of the following:

  1. The deceased’s assets
  2. The deceased’s debts (if not certain about existing debts then a notice to creditors should be published);
  3. The beneficiaries of the estate;
  4. The estate administration plan;
  5. Reasons why you are the most appropriate person to be named Estate Trustee;
  6. Reasons why a bond is not necessary.

In a situation where the above-mentioned conflict of interest exists, it would also be wise to address it in the affidavit, and explain why you are the most appropriate person to sign the consent on behalf of the minor. 

The decisions to dispense with the bond requirement and grant the CAET are made by the judge reviewing the application, on a case by case basis, depending on the affidavit evidence you submit. Despite a strong affidavit, a judge concerned with your signing of the minor’s consent may require something more before granting your application, or may even deny the application completely.

In a similar situation, a judge required the consent of the Office of the Children’s Lawyer (“OCL”) to my client’s application before he would grant the CAET. In the usual course of any estate involving minor beneficiaries, the OCL needs to be served with notice of the application, but their consent to the application is not required. Upon requesting its consent, the OCL responded by taking no position in regards to the matter and indicating that it is not able to provide a consent. The OCL’s response was filed with the court and the judge granted my client’s application shortly thereafter. Generally speaking, unless it has existing knowledge of the estate, the OCL will take no position in regards to the appointment of an Estate Trustee. 

So if you find yourself in a situation where you are not only the applicant for a CAET but also the only rightful person to sign a minor beneficiary’s consent to your application, it is important you understand that there is a high risk that your initial application may be returned by the judge. Anticipating this potential delay and the added work from the outset is important. This is especially true in cases where obtaining a CAET is needed urgently.  

In anticipation, you may be tempted to request the OCL’s position before submitting your application. Notwithstanding your best intentions, this may be counterproductive. Depending on the strength of your affidavit, the judge may grant the application without the need for anything further. In which case, taking the extra step to request the OCL’s position will have led to unnecessary delays and legal costs. Instead, it is best to focus on preparing a strong affidavit, and then adopting a “wait and see” approach with the judge’s decision. As mentioned, these decisions are made on a case by case basis by the judge. Providing strong affidavit evidence will go a long way to having your application accepted on the first try.  

Zach Gaulin