Foreign Trustee Company Approved as Estate Trustee – Despite Registrar’s Initial Refusal

Rogerson Law Group has successfully secured an order allowing the re-issuance of an overseas appointment, as estate trustee, of a foreign (Bermuda) trust company in Ontario, under a confirmation by resealing of a certificate of appointment.  This win is significant because the Registrar initially refused the application, but we persuaded the court to apply an earlier decision to the facts of this case.

This resulted in the order in our favour.

What’s the earlier ruling?

In Re Herring Estate (2009 CanLII 44707 (ONSC), a trust company registered in North Carolina in the U.S. was attempting to obtain legal recognition in Ontario of its authority as estate trustee.  This would enable it to deal with a single piece of real estate (a condominium) in Toronto.

However, the Registrar initially refused to allow the appointment: this was because a foreign trust company was deemed ineligible to act as an estate trustee in Ontario, unless it registers in the province as a trust company under section 175(2) of the Ontario Loan and Trust Corporations Act.  The case turned on the definition of carrying on or transacting business in Ontario.

The judge held that as the company:

  • would not be offering services to the public
  • would only be dealing with one asset, and
  • was acting in accordance with its duties in the administration of only one estate

it was not transacting business in Ontario as envisioned by the legislation.  The court therefore ordered the Registrar to issue the certificate of ancillary appointment.

What happened in our Bermuda case?

Rogerson Law Group’s client was a Bermudan Trust Company which was administering the estate of a Bermudan resident.  The deceased had owned real estate and bank accounts in Toronto. As Bermuda is a Commonwealth jurisdiction, it is not considered a ‘foreign’ country.  This means a different type of appointment is required in Ontario from that covered in the Herring Estate case.

We sought to confirm the Bermudan appointment by obtaining a ‘re-sealing’ of the probate appointment made in that other Commonwealth jurisdiction.  As in the Herring Estate case, the Registrar initially refused to issue the certificate of appointment granting the estate trustee authority to act in Ontario on the same basis: that a foreign trust company cannot act in Ontario without first registering as a business under the Loan and Trust Corporations Act.

We applied for Directions and sought to apply the judgment set out in Re Herring, arguing that the trust company was not carrying on business in Ontario and should, therefore, be exempted from registering in the province.

Here, our client – the Bermudan Trust Company – was not holding out services to the public, and was only administering a single estate with limited assets.  Justice Penny considered the decision in Re Herring, finding that the cases were similar on their facts.  He held that the same determination should therefore apply to a resealing of an appointment from a commonwealth country, as applied to an ancillary appointment of a ‘foreign’ estate trustee.

What do these cases mean?

Both Re Herring, and our Bermudan case (unreported), demonstrate that decisions by the Registrar with respect to an estate trustee’s eligibility for appointment can be reviewed and successfully overruled.

This successful case involving the Bermudan trust company particularly demonstrates that experienced legal counsel can enable estate trustees to overcome problems presented by the court that may arise in probate matters.

How can we help?

The experienced Estate Administration lawyers at Rogerson Law Group can expertly guide you through estate administration process, and any potential problems that could arise – including cross border issues.

Rogerson Law Group provides cross Estate Administration Border Estate Litigation services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and an associated office Ottawa.

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