An executor/trustee must act impartially and in the interests of all beneficiaries, or stands the risk of removal for conflict of interest.
This is what occurred in Browne v Brown Estate 2014 BCSC 656
There are a number of other detailed blogs on this website, on various aspects of the removal of executors/trustees, including:
April 10,2014 re changes in WESA S.25 allows for Removal of Executor
November 19,2013: Estate Claims – Have you Been Disinherited?
November 2, 2013: Removal of an Executor – Trustee
October 10,2013: The Five Criteria for Removal of a Trustee
August 17,2012: Proving Wills – Solemn Form vs Proof in Common Form Explained
November 8,2011: Co-executor/Trustee Removed for Lack of Co-operation with Other Executor/Trustee
May 29,2011: Executor Removed for Conflict of Interest
and April 12, 2011: Court Removes One Co-Executor in Deadlock Between Two
The court found that there were several reasons that would give rise to the removal of the executor and trustee, but first and foremost was the potential for conflict of interest given that the executor/ trustee claimed to be a 53% creditor of the estate assets, to which the other beneficiaries disagreed.
The court stated that it was a question of whether it would be difficult for the executor to act with impartiality, not whether she would or would not do so.
The court found that the executors potential conflict of interest because of her significant claim on the estate is a creditor , would cause her to gain personally from the decision she has made as executor based on her own claims as a creditor .
This plain and simply is a classic conflict of interest, for which the Courts will generally not hesitate to remove the executor/trustee on proper evidence.
Legal Framework
[37] The general test for removal of trustees/executors is set out in Letterstedt v. Broers (1883-84) L.R. 9 App. Cas. 371 (South Africa P.C.) at 385-389. Lord Blackburn says:
[The] main guide must be the welfare of the beneficiaries…The acts or omissions must be such as to endanger the trust property, or to show a want of honesty, or want of property capacity to execute the duties, or a want of reasonable fidelity.”
[38] Lord Blackburn stated at 387:
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above annunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a manner so essentially dependent on details often of great nicety. But they proceed to look carefully into the circumstances of the case.
[39] Letterstedt was followed in Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.) at 127.
[40] As noted by Donovan Waters, Q.C. in Water’s Law of Trusts in Canada Fourth Edition at 898:
… it is clear that much will turn on the facts of the particular case, and it is only by an analysis of the cases that the manner of application of those guidelines can be seen. The dishonesty of the trustee is an obvious ground for his removal. It is the gravest breach of trust, but dishonesty can extend beyond the situation where the trustee appropriates the trust property for himself to the situation where he has a discretion as to the division of the fund between himself and … other persons, and allocates to himself the lion’s share.
[41] Courts are reluctant to remove an estate trustee. A priority is to respect the testator’s decision in appointing that person: Veitch v. Veitch Estate, 2007 BCSC 952.
[42] Animosity or hostility between an executor and a beneficiary is not sufficient on its own to warrant removal as an executor: Letterstedt at 389.
