Canadian court recognises trustee’s authority to sell estate properties

Nicolas Kulyk (the deceased) died in 2013, survived by two adult children: Roman Kulyk (the applicant) and Andrew Kulyk (along with his children, the respondents). In a 2011 will, the applicant was appointed the executor and trustee of the estate. This will provided that the residue be divided in two equal shares, one given to the applicant and the other held in trust by the applicant for the respondents.

The conflict centred around two properties. Although the will did not confer on the respondents the right to reside in either, the applicant allowed them to do so until the children were no longer minors. When both children reached majority, the applicant sought to sell the properties to settle the estate.

The respondents ignored all proceedings, despite being served, and so the applicant applied to the court seeking various reliefs in relation to the two properties. The application requested: a vesting order and an order granting possession of the properties; authority to sell the properties without requiring consents from the beneficiaries; orders for the respondents to vacate the properties and provide rent accounts; and leave to issue writs of possession.

The court considered the case in light of the fact that the applicant had never applied for a Certificate of Appointment of Estate Trustee with a Will. It cited the principles set out by Oosterhoff on Wills, finding that such a certificate is not necessary in every case.

“Executors derive their authority from the will rather than from the probate process,” the court quoted. “As a result, executors have the lawful authority to deal with estate property even if they do not obtain probate…The primary function served by probate [certificate of appointment of estate trustee] is therefore not to vest named executors with authority to deal with estate property but to authenticate to third parties that the persons presenting themselves as the executors are indeed the persons (more specifically, the only persons) with that authority.”

As the applicant held the legal title to the estate properties, the court found there was no need for a vesting order. Similarly, it ruled there was no need for an order granting the applicant authority to sell the properties, as the will already set such authority out.

However, due to the respondents ignoring proceedings the court found that it was just to order them to vacate the properties and granted leave for a writ of possession to be issued (Kulyk v Kulyk, 2024 ONSC 4213).

“Executors derive their authority from the will itself, not the probate process, and this is what allows them to effectively manage the estate assets,” commented law firm Hull & Hull. “The Court’s decision reaffirms the executor’s authority to manage and sell estate properties according to the deceased’s will.”

Sources

• CanLII
• Hull & Hull