Court Rejects Removal of Executor – False Allegations Lead to Special Costs

False allegations of misconduct, including fraud, based on mere suspicion  by a beneficiary, were not sufficient to remove an executor for wrongful conduct, and instead brought rebuke against the complainant in the form of an award of lump sum special costs against him.

In Watson v Strong 2014 BCSC 754 the Court stated:

I have concluded that there is no basis for the petitioner to be removed as executor.

[47]         There is no evidence that the petitioner has “endangered the trust property, or [shown] a want of honesty or of proper capacity to execute the duties, or a want of reasonable fidelity”: The Estate of Sally Toby Mintz, 2007 BCSC 1922 at paras. 17-18, citing, inter alia, Conroy v. Stokes (1952), 6 W.W.R. 204 (B.C.C.A.) at 206-207.

[48]         There are, at best, only accusations based loosely on speculation.

[49]         Perhaps the best example of such speculation is the respondents’ allegation that the petitioner and his legal counsel are acting in concert to obtain the Property for themselves and that their actions against the respondents are motivated by their own self-interest. These are most serious allegations which go to the root of an executor’s and counsel’s responsibilities, in particular their fiduciary duties. They are not to be taken lightly.

The respondents have chosen to make serious allegations of misconduct, including fraud, against the petitioner and his counsel. For the reasons I have outlined above, there is no basis for the accusations of impropriety which have been advanced.

[64]         I view the conduct of both respondents to be “worthy of reproof or rebuke”, entitling the petitioner to an award of special costs: Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). I conclude these costs should be assessed on a lump-sum basis, taking into account the amount the petitioner shall receive under Scale B.

[65]         I consider the conduct of the respondent Marian Strong to be less egregious than that of the respondent Gordon Watson, who, both in his written materials and submissions to the Court, accused the petitioner and his counsel of fraud.

[66]         The respondents’ future conduct, including their compliance with the orders I have made above, may be a factor in the amount of special costs I award. Accordingly, I direct that submissions with respect to the amount of lump-sum special costs occur after the Property has been sold. I am seized of that application.

 

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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