When Estate Trustees Cannot Agree: Why Ontario Courts Turn to an ETDL
Two estate trustees are appointed to administer the same estate.
They disagree about an asset. Neither trusts the other’s position. One wants to pursue a claim. The other opposes it. Meanwhile, someone still has to preserve the estate, deal with its assets, address liabilities and make decisions that cannot simply wait for the litigation to end.
Who controls the estate?
That problem was front and centre in the Ontario Superior Court of Justice’s recent decision in Craib v. Craib, 2026 ONSC 3074.
The decision is significant not simply because the estate trustees disagreed. Estate trustees disagree all the time.
What matters is what happens when the disagreement becomes so fundamental that the people charged with administering the estate can no longer function together.
In those circumstances, Ontario courts have an important tool available: the appointment of an Estate Trustee During Litigation, commonly referred to as an ETDL.
The Problem With Estate Trustees Litigating Against Each Other
Joint estate trustees are expected to administer an estate together.
That becomes difficult when they are also adversaries.
The problem is structural.
An estate trustee may believe an asset belongs to the estate. Another may personally claim that same asset. One trustee may believe litigation should be commenced. Another may refuse. Decisions about disclosure, preservation of assets, legal expenses and settlement may all become entangled with the trustees’ personal interests.
At some point, asking the same individuals to litigate against each other while jointly administering the estate can become unworkable.
That is where an ETDL becomes particularly important.
What Happened in Craib v. Craib?
Craib involved three brothers and the estates of their late parents.
Among the issues was a joint Scotiabank account that had been held by their mother and one of the sons. After their mother’s death, that son took control of the account.
Another brother argued that the account was subject to a resulting trust in favour of the mother’s estate and sought disclosure and other relief.
The dispute was not occurring in isolation.
The brothers were also the individuals expected to administer the relevant estates.
By the time the matter returned to Court, the level of conflict and mistrust had become a central problem in moving the estates forward.
Justice Siran described the brothers as joint trustees who were incapable of agreeing and unable to function together practically or rationally.
That finding ultimately drove one of the most important aspects of the decision.
The Court Drew a Line
The Court did not simply tell the brothers to cooperate.
It went considerably further.
Justice Siran ordered that no further motions could be brought in the proceeding, other than a motion for directions under Rule 75.06 or with Court authorization, until an ETDL was appointed for the father’s estate.
The message was practical.
Before the parties continued fighting about the estate, the estate itself needed an independent representative capable of acting on its behalf.
The Court observed that without separate and independent representation for the estate, further progress was unlikely given the level of conflict and mistrust.
What Exactly Is an ETDL?
An Estate Trustee During Litigation is a temporary estate trustee appointed by the Court while estate litigation is ongoing.
The authority to make the appointment arises under section 28 of Ontario’s Estates Act and Rule 75.06(3)(f) of the Rules of Civil Procedure. Ontario courts have described the appointment as part of the Court’s broad jurisdiction to supervise estates and protect estate property during litigation.
The ETDL does not decide who wins the underlying lawsuit.
The ETDL’s role is to administer and preserve the estate while everyone else litigates.
Depending on the Court’s order, that can include:
• Protecting estate assets
• Paying legitimate estate expenses
• Dealing with tax obligations
• Managing investments or property
• Addressing administrative issues that cannot wait
• Instructing counsel on behalf of the estate where appropriate
The essential feature is independence.
The estate has someone responsible for its administration who is not simultaneously fighting for a personal outcome in the underlying dispute.
An ETDL Is Not a Punishment
This distinction matters.
Appointment of an ETDL does not necessarily mean an existing estate trustee has committed misconduct.
Nor should it automatically be viewed as a finding that one side is right and the other is wrong.
The purpose is different.
Ontario courts have described an ETDL as a mechanism for maintaining a level playing field, preserving estate assets and protecting the interests of beneficiaries while the underlying dispute is determined.
In a high-conflict estate, neutrality can itself become an important form of protection.
Ontario Courts Have Identified the Relevant Factors
The decision to appoint an ETDL remains discretionary.
Factors Ontario courts have considered include:
• Whether an estate trustee may become a witness in the litigation
• Potential conflicts of interest
• Conflict between trustees or beneficiaries
• Hostility between the parties
• Breakdown in communication
• Settlement discussions that exclude interested parties
No single factor automatically determines the result.
The question is whether the circumstances make independent administration necessary or appropriate while the litigation proceeds.
Courts Often Favour an ETDL, But Appointment Is Not Automatic
This is an important qualification.
Ontario authority recognizes that appointing an ETDL is not an extraordinary remedy. Courts have stated that an ETDL will generally be favoured in contested estates unless the administration is particularly straightforward or simple.
But that does not mean every estate dispute requires one.
In Zarrin-Mehr v. Shokrai, 2024 ONSC 6319, the Court declined to appoint a professional ETDL.
Although the parties were adverse in the litigation, the Court was not satisfied that the alleged hostility or communication problems were impairing the administration or threatening the preservation of the estate assets. A no-dealings order already protected the properties, and the estate itself was relatively straightforward.
Importantly, the Court was also concerned that the cost of a professional ETDL would unnecessarily reduce what remained available for the beneficiaries.
That decision provides an important counterweight.
Conflict alone is not enough.
The Court must consider whether independent administration is actually warranted and proportionate in the circumstances.
Craib Shows What Happens When the Conflict Becomes Structural
That is what makes Craib particularly instructive.
The issue was no longer merely that three brothers disagreed.
Their competing personal interests had reached the point where the estates could not meaningfully move forward.
The Court had already directed the parties toward an ETDL months earlier. They did not implement that direction and instead returned with further motion practice.
Justice Siran’s response was direct: further motions would not proceed until the estate had an independent representative, subject to the limited exceptions in the order.
That is a materially different situation from an estate where the assets are protected, the administration is simple and the existing trustee remains capable of administering the estate despite the litigation.
The Estate Cannot Become Collateral Damage
There is a broader principle underneath these cases.
Estate litigation can take time.
While the parties argue about ownership, validity, accounting or trustee conduct, the estate continues to exist.
Taxes may become due.
Property may require maintenance.
Insurance must remain in place.
Investments may require decisions.
Creditors may need to be addressed.
Assets may need to be preserved.
An estate cannot simply remain unattended until the litigation is finally resolved.
An ETDL separates those two functions.
The litigants can litigate.
The estate can continue to be administered.
The Cost of Neutrality Still Matters
There is, however, a practical trade-off.
Professional ETDLs cost money.
Those fees are ultimately borne by an estate that may already be incurring substantial litigation expenses.
That is why proportionality matters.
For a complicated estate involving significant assets, ongoing businesses, real property, tax obligations or serious conflicts between trustees, the cost of independent administration may be entirely justified.
For a simple estate where the assets are already protected and little active administration is required, the additional expense may accomplish very little.
The Court’s task is not simply to ask whether conflict exists.
It is to determine whether the benefits of independent administration justify the cost and whether another mechanism can adequately protect the estate. Zarrin-Mehr demonstrates precisely that analysis.
A Practical Lesson for Co-Estate Trustees
Co-estate trustees do not need to agree about everything.
Disagreement by itself does not mean the administration has failed.
But there is an important difference between disagreement and dysfunction.
When trustees become genuinely adverse, when their personal interests conflict with the estate’s interests, or when mistrust makes joint administration impossible, continuing to insist that the same people jointly control the estate may make little practical sense.
At that point, the question may no longer be:
Which estate trustee should control the estate?
The better question may be:
Should either of them control it while they litigate against each other?
That is the problem an ETDL is designed to solve.
A Practical Perspective
Craib v. Craib is a useful reminder that estate litigation is not only about determining who is ultimately right.
The estate must still be protected while that determination is being made.
Ontario courts have broad discretion to appoint an independent Estate Trustee During Litigation where the circumstances warrant it. The appointment is not automatic, and the Court must remain sensitive to proportionality and cost.
But where co-estate trustees have become genuine adversaries and their conflict prevents the estate from functioning, Craib demonstrates how significant the ETDL can become.
Sometimes the most effective way to move an estate dispute forward is to take the administration of the estate out of the dispute altogether.
For a broader explanation of the role and powers of an ETDL, see What Is an ETDL and When Is It Needed in Ontario Estate Litigation?
Where conflict between estate trustees has made continued administration unworkable, the dispute may require Estate Litigation.