E Family Fued: How An Estate Trustee During Litigation (ETDL) Can Support Good Outcomes In Family Estate Disputes

The settlement of an estate can he a magnet for disputes and litigation, especially when the estate is complex, possibly involving ongoing businesses, real estate and investment properties. Divorce among family members, including children of the deceased, can also add to the complexity, resulting in will challenge litigation that goes on for months or years.

The value of the estate can shrink if there is no trusted hand at the helm to maintain the value of those assets. If the estate includes one or more businesses, valued employees and customers may leave; in the case of property, maintenance steps might be postponed. So while the heirs dispute over the way the pie gets divided, the pie itself can get smaller.

That is where an estate trustee during litigation (ETDL), can help. Appointed by the court to manage the estate while the litigation over its disposition is ongoing, the ETDL works under the relevant legislation (in Ontario, it’s Section 28 of the Ontario Estates Act). This person takes responsibility for preserving—and if possible, growing — the value of the estate during estate litigation.

While Will-challenge litigation is rarely pleasant for the parties involved, having an effective ETDL watching over the assets means that legal counsel and family members can devote their time and energy to working towards a fair division of the estate.

Bryan Tannenbaum commented “For example, the dispute might involve a sister and brother, both beneficiaries of an estate that includes a residential apartment. The brother might want to sell the property but the sister does not.” An ETDL could go to the court and propose that either the brother and the sister agree for one to buy out the other’s interest through an auction between the two of them, or there be a sales process in which offers for the property are invited.

While will challenge litigation is rarely pleasant for the parties involved, having an effective ETDL watching over the assets means that legal counsel and family members can devote their time and energy to working towards a fair division of the estate all the while knowing that management of the estate is in good hands.