The administration of the Estate of Zelia Maria Andrade has moved into a new phase following a recent decision by the Ontario Superior Court of Justice to remove the originally named estate trustee and appoint a professional successor1. Justice Di Luca released an endorsement on November 10, 2025, resolving a dispute centered on the governance of the estate that had stalled due to the unwillingness of the named executor to continue in her role. The case highlights the procedural complexities that arise when a designated trustee wishes to step down after having already commenced some duties, as well as the legal standards applied when a beneficiary alleges a conflict of interest against a proposed replacement.
Zelia Maria Andrade passed away on May 25, 2024, leaving behind a Last Will and Testament dated October 11, 2018. This testamentary document had been drafted by a lawyer, Shannon Durno, who was also named in the will as the sole estate trustee. The will did not name any alternate or substitute trustees, meaning that Ms. Durno was the only individual with the immediate authority to administer the estate assets. Following the death of the testator, Ms. Durno initially took steps to begin the administration process. Approximately two months after Zelia Maria Andrade’s passing, Ms. Durno retained the legal services of Aleksandr Bolotenko Professional Corporation to assist her with the necessary legal work involved in managing the estate.
The administration of the estate faced early friction. One of the beneficiaries, Fernando Andrade, retained counsel and engaged in correspondence with the firm representing the estate trustee. Matters escalated when Fernando Andrade, acting on his own behalf after his counsel was no longer involved, filed a formal notice of objection against Ms. Durno’s appointment. In response to this challenge, Ms. Durno took prudent steps to protect her professional standing by terminating her retainer with Mr. Bolotenko’s firm and retaining LawPRO counsel. Simultaneously, the Applicants in the current proceeding, Evelina Raimundo and Natalia Jesus Monaco, retained Mr. Bolotenko’s firm to represent them in seeking to vacate Fernando Andrade’s objection. That specific dispute was heard earlier in the year by Justice Speyer, who on June 23, 2025, granted the application to vacate the objection and ordered costs against Fernando Andrade.
Throughout this period of litigation and procedural wrangling, Ms. Durno formed a decided intention to step down from her role. She made it clear to the parties involved that she was unwilling to act as the estate trustee. This position was described to the court as a considered and final decision. However, because she had already engaged in certain acts related to the estate, simply resigning or renouncing her appointment was not a procedural option available to her without court intervention. The Applicants brought the matter before Justice Di Luca to formally remove Ms. Durno and to appoint Aleksandr Bolotenko as the succeeding estate trustee. While most of the beneficiaries consented to this plan, Fernando Andrade opposed the appointment of Mr. Bolotenko, alleging a conflict of interest.
The first legal hurdle addressed by the court was the status of Ms. Durno. Under Ontario estate law, an executor who has not yet acted can simply renounce their appointment. However, once an executor has “intermeddled” with the estate, they are considered to have accepted the office and cannot unilaterally resign. Intermeddling refers to the performance of tasks that demonstrate an intention to take on the role of executor. In this case, the evidence showed that Ms. Durno had retained counsel to administer the estate, engaged in correspondence with Fernando Andrade regarding estate matters, and took steps to defend against the initial will challenge.
Justice Di Luca cited established jurisprudence, specifically the decision in Chambers Estate v. Chambers, to affirm that because Ms. Durno had intermeddled, she was not in a legal position to merely renounce. Consequently, a court order was required to facilitate her exit. The court noted that it has the jurisdiction to remove a trustee who is unwilling or unable to act under the Trustee Act. Recognizing that the court cannot compel an unwilling person to serve in a fiduciary capacity, Justice Di Luca ordered that Ms. Durno be removed as estate trustee, clearing the way for a successor to be appointed.
The second and more contentious issue was the selection of the succeeding estate trustee. The general rule in such proceedings is that when a court removes a trustee, it must simultaneously appoint a replacement to ensure the continued and proper administration of the estate. The Applicants proposed Aleksandr Bolotenko for this role. Mr. Bolotenko is a lawyer with significant experience in estate law and expressed a willingness to undertake the duties. All beneficiaries, with the sole exception of Fernando Andrade, agreed to this appointment.
Fernando Andrade’s opposition was rooted in a claim of conflict of interest. He argued that because Mr. Bolotenko’s law firm had previously been retained to assist Ms. Durno and had subsequently represented the Applicants in the successful application to vacate Fernando’s earlier objection, Mr. Bolotenko could not act impartially. Fernando Andrade expressed distinct displeasure with the outcome of the earlier proceeding before Justice Speyer and indicated an intention to take the matter to a higher court. He viewed the proposed trustee’s prior professional connection to the opposing parties as a disqualifying factor.
In resolving this objection, the court looked to the legal test for removing or disqualifying a trustee based on conflict. Justice Di Luca referenced the decision in Sasso v. Sasso, noting that removal is warranted where there is a conflict between the trustee’s personal interests and their duties to the beneficiaries, or where the trustee would inevitably have to weigh their own interests against those of the estate. The court examined whether Mr. Bolotenko fell into either of these categories.
The court found that there was no risk of a personal conflict of interest. Mr. Bolotenko is not a beneficiary of the Estate of Zelia Maria Andrade and stands to gain nothing from the estate other than standard professional compensation for his work as trustee. His mandate is strictly to administer the estate for the benefit of the beneficiaries. Furthermore, the court noted that Mr. Bolotenko was not acting against a former client. Fernando Andrade had never been a client of Mr. Bolotenko or his firm, meaning there was no risk of the misuse of confidential information that often grounds conflict of interest claims in legal practice.
The court then considered the specific nuance that Mr. Bolotenko’s firm had acted for the Applicants in the litigation to vacate Fernando’s objection. The Applicants themselves, who were the former clients in question, expressed their content with Mr. Bolotenko assuming the role of neutral trustee. They raised no concerns about his ability to act impartially. The judge acknowledged that Mr. Bolotenko would owe a fiduciary duty to all beneficiaries equally, including Fernando Andrade, once appointed.
Justice Di Luca reasoned that as a succeeding estate trustee, Mr. Bolotenko’s role would change significantly. He would no longer be acting qua counsel (in the capacity of a lawyer advocating for a client) but rather as a fiduciary responsible for the administration of the will. The court found that Mr. Bolotenko clearly appreciated the nature of this role and the distinct duties it engaged. The judge concluded that there was little, if any, risk of conflict in these circumstances. The mere fact that his firm had represented the Applicants in a prior procedural step did not bar him from serving as the trustee, particularly when the Applicants themselves waived any potential conflict and supported his appointment.
It was also noted by the court that Fernando Andrade, despite objecting to Mr. Bolotenko, failed to propose an alternative candidate for the role of estate trustee. His opposition appeared to stem primarily from his dissatisfaction with the previous court ruling against him rather than a concrete legal impediment regarding Mr. Bolotenko’s qualifications or neutrality. The court found that ensuring the estate was administered by a willing, professional trustee was the priority.
Consequently, the court ordered the appointment of Aleksandr Bolotenko as the succeeding estate trustee. This appointment grants him the authority to manage the assets of the Estate of Zelia Maria Andrade and bring the administration to a conclusion. The transition ensures that the estate is no longer in a state of paralysis due to the resignation of the original executor.
The court also addressed the issue of costs for the application. Justice Di Luca invited the parties to make brief written submissions regarding the legal costs incurred during this specific proceeding. The Applicants were given fifteen days from the release of the endorsement to file their submissions, while the Respondents, including Fernando Andrade, were granted thirty days to respond. The decision effectively allows the administration of the estate to resume under new leadership, closing the chapter on the governance dispute that had arisen following the initial executor’s decision to withdraw.
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