The testator's last wishes are therefore the only keys that definitively open or close the door to contesting a will.
The administration of a will is often a source of conflicts and, even more so, the choice of liquidators or, in some cases, trustees.
For example, a testator without descendants, well aware of the conflicts within his family, creates a testamentary trust and designates one of his nephews as the trustee.
One month after the testator's death, even though the bequeathed assets have not yet been transferred to the testamentary trust, the beneficiaries ask the trustee to renounce his position. The trustee refuses. The beneficiaries turn to the Court* and request his removal. The beneficiaries argue that they do not trust the trustee "to administer the assets that have been bequeathed to them" and that there is a "serious conflict" between them, a conflict that will necessarily and unquestionably harm the administration of the trust by the appointed trustee.
The Court of Appeal emphasizes that, in order to remove a trustee, one must "prove the existence of serious misconduct that falls upon the trustee as an administrator of someone else's assets" and demonstrate that this removal would better respect the wishes of the testator.
Thus, the Court refuses to remove the trustee because the appointment of the trustee "is the sovereign prerogative" of the testator and one cannot circumvent the testator's wishes. "In matters of will interpretation, the testator's intention must be sought."
The testator's last wishes are therefore the only keys that open or definitively close the door to contesting a will.
*CA Québec 200-09-006032-079
