When a will is challenged or an executor’s conduct is under attack, an Ontario estate can sit in legal limbo for a year or more — no confirmed trustee, no one with clear authority to pay the insurance, deal with the lender, or protect the house. The court’s solution is one of the most useful and least understood tools in estate litigation: the Estate Trustee During Litigation, or ETDL. Having advised on ETDL matters in my own practice, I can say the role is best understood as the court parking the estate’s keys with a neutral caretaker until the family’s dispute is decided.
The legal basis: s. 28 of the Estates Act
Two provisions do the work. Section 28 of the Estates Act lets the Superior Court of Justice appoint an administrator while litigation over a will’s validity — or over obtaining or revoking an appointment — is pending. Rule 75.06(3)(f) of the Rules of Civil Procedure lets the court make the appointment on a motion or application for directions in any contentious estate proceeding, with such security as the court directs. The ETDL receives all the powers of a general administrator except distributing the residue, and acts subject to the immediate control and direction of the court. Importantly, the proposed ETDL does not apply personally — a party to the litigation brings the motion and puts the nominee forward.
A deliberately low threshold
Many families assume they must prove misconduct before the court will step in. The case law says otherwise. In Mayer v. Rubin (2017), the court held that a trustee who is in an adversarial position toward a co-trustee or beneficiary should not normally be left in charge of the trust property — control of the assets can too easily become litigation leverage. The Divisional Court’s synthesis in the Baran v. Cranston line of cases goes further: appointing an ETDL is not an extraordinary measure, and the court should refuse one only in the clearest of cases. Conflict, hostility, deadlock between co-executors, refusal of financial disclosure, or an executor who will be a key witness — any of these can be enough. An ETDL can even be appointed where nobody attacks the will at all, such as in dependant-support or executor-removal disputes.
Who can serve — and no, there is no licence
There is no statutory licensing regime for ETDLs. The court appoints any suitable neutral person: estates lawyers, accountants, trust companies, licensed insolvency trustees, retired professionals — and, where the estate’s dominant asset is real property, professionals whose competence matches that asset. What the court actually weighs is suitability: no stake in the outcome, no likelihood of being a material witness, competence relevant to the assets, and reasonable cost. In Denny v. Denny (2022), a financially skilled family member was passed over because of an indirect interest, in favour of a retired estates lawyer with no connection to either camp. Where all parties consent to a nominee, appointment is close to automatic; where it is contested, expect opposing counsel to probe the nominee’s connections to the side proposing them.
The paperwork: Consent to Act and the fee proposal
A well-prepared nomination package includes three things: a signed Consent to Act, a summary of the nominee’s qualifications, and a written fee proposal — usually hourly rates, since professional ETDLs bill by time subject to later court approval rather than taking the executor’s percentage tariff. Reference points in the market: estates lawyers commonly bill in the range of $400 per hour plus HST for ETDL work with clerks around $225; accountants, trust officers and other qualified professionals typically land between roughly $150 and $350 per hour depending on the work. The court may require security (a bond) under the Estates Act, but routinely dispenses with it for trust companies and insured professionals on proper evidence. Compensation terms belong in the appointing order — an ETDL should never pre-take fees without approval.
What an ETDL actually does
The appointing order defines the powers, and typically covers: securing and insuring property; preparing an inventory and obtaining appraisals; collecting income; communicating with lenders — critical where a mortgage or reverse mortgage is coming due; paying debts, taxes and carrying costs; retaining professionals; and, where authorized, listing and selling real property. Selling a significant asset usually requires either explicit authority in the order or a further court order. Throughout, the ETDL owes strict neutrality: reporting even-handedly to all beneficiaries, copying all parties on material communications, and taking instructions from the court order alone — not from the party who nominated them. In practice, a good ETDL often accelerates settlement simply by producing an inventory and valuations everyone can trust.
Frequently asked questions
Who pays for an Estate Trustee During Litigation?
The estate itself, not the litigating parties personally — with fees fixed or capped in the appointing order and ultimately reviewed by the court, typically on a passing of accounts.
Can an ETDL sell the estate’s house?
Yes, if the appointing order authorizes it — and where a lender deadline or daily carrying costs are eroding the estate, courts regularly grant that authority. The sale proceeds are then preserved for whoever ultimately wins the underlying dispute.
Does the ETDL decide who wins the will challenge?
No. The ETDL is a custodian, not a judge — they administer the estate consistently with every possible outcome and take no position on the merits.
Does an ETDL need to be a lawyer?
No. Courts look for neutrality, competence matched to the estate’s assets, and proportionate cost. Lawyers, accountants, trust companies and other qualified professionals are all appointed; corporations acting as trustee must be authorized trust companies.
When does the ETDL’s job end?
When the litigation, including any appeal, concludes — usually with a final order approving the ETDL’s accounts, discharging them, and handing the assets to the confirmed estate trustee.
The bottom line
If your family is heading into a will challenge and the estate’s main asset is a house with a mortgage clock ticking, the ETDL motion is usually not a side issue — it is the main event of the first six months. A credible, genuinely neutral nominee with a transparent fee proposal protects the asset, levels the playing field, and often shortens the entire dispute.
Gurpinder Gaheer, BA (Hons), MBA, is a dual-licensed real estate broker and mortgage broker serving families, estate trustees and their advisors across Ontario. His practice includes estate and probate property sales, estate financing solutions, and acting as a neutral professional in contested estate matters — including ETDL nominations where the principal asset is real property. You can reach him through gaheer.com/.
This article is general information, not legal advice. Estate litigation is highly fact-specific — always consult a qualified Ontario estates lawyer about your own situation.