Two Estate Trustees, One Won’t Sign: The Ontario Routes When Co-Executors Deadlock Over the House

One estate trustee refuses to sign and the sale freezes. No Ontario statute actually says trustees must act unanimously — but the way out is clear, and it runs through the Superior Court, not around the hold-out.

I am Arthur Zhao. Of all the estate listings I have handled, the one that jams up most reliably is this: the will named two estate trustees, and one of them simply will not sign. The house cannot be listed cleanly, offers cannot be accepted, no valid transfer can be signed on closing day — and the family, understandably, starts looking for a way to push the hold-out aside.

Here is the reassuring part up front: the house can be sold. Ontario law gives a clear way through — it just is not the way most people reach for. It runs through the court, not around the person. And here is the part that surprises almost everyone: the rule that “everyone has to act together” is not written into any statute in plain words. I checked, section by section. Below I unpack three things — where that rule really comes from, why the obvious fix fails, and which doors actually open.

Start with the signature: who actually has to sign the transfer

Before any statute, look at the mechanics. To convey estate land in Ontario, the transfer must be signed by all of the estate trustees named to act. Two were appointed; one refuses; the transfer therefore cannot be signed in full — and a deal that cannot be signed cannot close. Everything below is about how that one missing signature gets restored, lawfully, when the person behind it will not cooperate.

The line almost everyone misreads: “concurrence” here is the beneficiaries’

Open the Estates Administration Act and you hit the word concurrence several times in s.17. It is tempting to read that as “the trustees must agree with each other.” It says nothing of the sort. The concurrence in s.17 is the concurrence of the persons beneficially entitled — the beneficiaries — and s.17(2) actually lets a judge dispense with it in a proper case. It is not a rule about two co-trustees signing together.

Getting this straight matters, because a deadlock between co-trustees and an objection from a beneficiary run down completely different legal roads. Misdiagnose the block at the start and every step after it is aimed at the wrong door.

So where does “act together” actually come from?

Here is the surprise: no Ontario statute states head-on that all estate trustees must act unanimously. Read the Trustee Act and the Estates Administration Act line by line and the phrases “all the trustees” and “all the personal representatives” simply do not appear.

The unanimity rule is a common-law default: a trust power is held jointly and must be exercised jointly, so one trustee cannot deal with the property alone. The statute confirms it sideways. Trustee Act s.36(1) lets a majority of trustees pay trust money into court “without the concurrence of the other or others if the concurrence cannot be obtained.” The legislature only needed that majority exception because the baseline is unanimity — you do not write an exception to a rule that does not exist.

But mind the reach of s.36: it is about money paid into court. It does not solve a signature on a transfer of land. The house still sits on the unanimity default — which is exactly why it is stuck.

The instinct that fails: “can’t we just have them resign?”

If one hold-out freezes everything, the natural move is to retire that trustee and let the rest carry on. Trustee Act s.2 does contain a retirement mechanism: where there are more than two trustees, one may declare by deed a desire to be discharged and, with the consent by deed of the co-trustees and anyone empowered to appoint trustees, is discharged without a replacement being appointed.

It looks made for this — except for the next subsection. s.2(2): “This section does not apply to executors or administrators.” The voluntary-retirement route is expressly shut to estate trustees. This is the classic trap: a section that is real, that reads as if it fits, and that the very next line carves your situation out of.

Door 1 — the trustee who is present but won’t act

When the trustee is here and simply refuses, there are two court routes, and an estates lawyer chooses between them.

Removal — Trustee Act s.37(1). The Superior Court “may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.” Note how broad the standard is — “any ground” on which any trustee may be removed, not proof of fraud. Under s.37(2) a court-appointed replacement must, unless the court orders otherwise, post security.

A vesting order for refusal — Trustee Act s.10(1)(f). Where a trustee has been formally required to convey the land and has wilfully refused or neglected to convey for fourteen days after the requirement, the court may make an order vesting the land in whomever it directs. This can be more direct than removal, because it targets the conveyance itself rather than the office.

Door 2 — the trustee who is abroad or cannot be found

A different fact pattern, a different door. Where a co-trustee has moved out of the province and gone dark, removal for misconduct may not fit — the person is not misbehaving, just unreachable. Trustee Act s.10(1)(b) is built for exactly this: where a trustee entitled to or possessed of land “is a minor, or is out of Ontario, or cannot be found,” the court may make an order vesting the land in such person and manner as it directs. It is a land-specific remedy — which is what a stalled house sale needs. The applicant is usually the trustee who is continuing to act and needs the conveyance to happen.

Door 3 — when the block is really the beneficiaries, not the trustees

Sometimes the trustees agree and it is a beneficiary pushing back. That is not a co-trustee deadlock at all, and s.37 removal is not the tool. This is s.17 territory in the Estates Administration Act — the framework about a personal representative dealing with estate land and the beneficiaries’ concurrence, where a judge may even dispense with that concurrence in a proper case. The reason to name this door is diagnostic: before anyone drafts a court application, be sure you have correctly identified who is actually blocking the sale.

The scope trap: what the grant actually authorizes

Even with the trustees aligned, check one more thing: whether the document appointing you to administer the estate lets you deal with real property at all. Estates Administration Act s.17(7) states that s.16 and s.17 “do not apply to an administrator where the letters of administration are limited to the personal property, exclusive of the real property.” If the grant covers only personalty, the power to deal with the land was never conferred — and the thing freezing the sale may be the scope of the grant itself, not a stubborn co-trustee. A buyer’s lawyer will test this on title; better to confirm it before listing than to discover it the week of closing.

What the deal desk needs to see

Strip out the sections and put it on a listing file. Two things surface first.

Who signs the listing agreement. On an estate sale that should be all the estate trustees, unless one has been removed or a court order says otherwise. One missing signature means the listing authority itself is incomplete — not something to paper over now and fix before closing. A buyer’s lawyer will want the chain of signing authority intact.

What the buyer’s lawyer will requisition. Typically: the probate documents, proof of the current trustees’ authority, and — if there has been a removal or a vesting order — the court order itself. If the signing deadlock is not cleared before closing, the real consequence is not “it never sells” but “closing day arrives and no valid transfer can be executed,” with the breach falling on the seller’s side. So on an estate listing I confirm, up front, how many trustees there are, whether all are in place, and whether the grant reaches the real property.

After the order: who ends up holding the pen

Winning the application is not the finish line — the practical question is who is left holding the pen to sign the sale. The two routes answer it differently, and neither answer is obvious from the section number alone.

The removal route (s.37). People assume removing a co-trustee means a stranger gets appointed in their place and the delay starts over. Not necessarily. Trustee Act s.37(4) says that where the removed trustee is not a sole executor or administrator, the court need not appoint anyone to replace them unless it sees fit; if no appointment is made, the removed trustee’s rights and estate pass to the remaining trustee as if the removed person had died. One clean consequence: with no new appointment, the s.37(2) security requirement simply does not arise.

The vesting route (s.10(1)(b)). Trustee Act s.10(3) spells out the result: where the order relates to a trustee entitled jointly with another person who is out of Ontario or cannot be found, the land vests in that other person, alone or with someone else. The house lands, cleanly, with the trustee who stayed to do the work.

Read alongside the doors above, the chain is complete: not just how the deadlock is broken, but who holds the signing authority once it is — and both steps are for an estates lawyer to run.

Arthur Zhao

Real Estate Broker · FRI · ABR · SRS · PSA · MCNE · E-PRO · CLHMS & GUILD Elite · REAIS

VP & Branch Manager, Bay Street Group Inc.

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