Ontario court refuses to appoint disbarred lawyer as estate trustee

Ex-lawyer found guilty for participating or knowingly assisting in dishonest, fraudulent conduct

Ontario court refuses to appoint disbarred lawyer as estate trustee

In a recent case where a disbarred lawyer applied for appointment as an estate trustee, the Ontario Superior Court of Justice said that this was one of those rare occasions where it should invoke its inherent discretion to reject the application.

A testator signed, in the presence of William Bishop and one other witness, a September 2022 will naming his female friend as executrix and trustee. On the backsheet, in a place where and in the style that one would normally find a lawyer’s name, there appeared Bishop’s name, address, and designation as a consultant.

The testator died last April. Two days later, his female friend renounced her right to be appointed as an estate trustee. Five individuals entitled to a share of the estate then signed consents to Bishop’s application for a certificate of appointment as an estate trustee with a will.

The heirs filed a motion asking the court to allow Bishop to be the executor. The issue that arose in this case was whether the court should exercise its inherent jurisdiction to reject Bishop’s application.

Back in 2012, a hearing panel of the Law Society of Ontario permanently disbarred Bishop and found him guilty of professional misconduct for participating in or knowingly assisting in dishonest and fraudulent conduct by his vendor/purchaser clients and others in obtaining mortgage funds under false pretenses in connection with 14 transactions.

The Law Society Tribunal’s appeal division and the Ontario Divisional Court upheld this decision.

The Divisional Court said that, while there appeared to be no real concern that Bishop would repeat such conduct, there was a “pressing need to send a consistent message that engaging in fraudulent conduct by a lawyer is a matter that will not be tolerated because of its impact on the profession as a whole.”

Request to be trustee rejected

In Re James Estate, 2023 ONSC 6432, the Ontario Superior Court of Justice dismissed his application for appointment as an estate trustee.

The court acknowledged that the heirs had confidence in Bishop. It also accepted that it was unaware of any principle or rule automatically disqualifying a disbarred lawyer from acting as an estate trustee.

The court then said that it had an overarching responsibility to promote confidence in the administration of justice and to uphold the rule of law. Ultimately, it refused to appoint Bishop as an estate trustee upon considering the facts of the case.

The court noted that Bishop was not nominated as estate trustee by the testator and was no longer entitled to the presumption of being a person of integrity, probity, and trustworthiness, given that he was adjudicated to have participated in or knowingly assisted in dishonest and fraudulent conduct.

Bishop, as a disbarred lawyer, was prohibited from providing legal services as defined by Ontario’s Law Society Act, 1990, including drafting wills or advising people on their legal interests, rights, or responsibilities, the court also noted.

There were ample grounds to believe that Bishop engaged in disallowed activities, the court found. The court noted the following circumstances, which raised questions regarding the nature and extent of his involvement in and relationship with the testator’s family:

  • the appearance of his name on the will’s backsheet
  • his presence as a witness to the will
  • the renunciation by the designated estate trustee two days after the testator’s death
  • the beneficiaries’ consent to his application within weeks from the death
  • the heirs’ statement that, after his disbarment, he “continued to advise [the testator and his family members] on important matters”

This evidence did not indicate that Bishop would engage in future conduct that would injure the estate’s interests, the court accepted. However, the court found that the evidence raised a concern that aspects of his involvement might have crossed the line or skirted around the fringes of the unauthorized practice of law.

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