BC Estate Lawyer – Court Costs and Full Indemnity

Trevor Todd and Jackson Tod have practiced contested estates for over sixty combined years, including dealing with contentious costs awards.

Re Chou Estate 2024 BCSC 481 dealt with the issue full indemnity for costs.

Full indemnity costs are generally awarded when one party is so successful at trial for what could be a number of reasons , that the court essentially says that the losing party must pay all the legal fees of the winning party, so that there is full indemnity.

Full indemnity costs are still subject to review to ensure their reasonableness, and an award of full indemnity costs is not a “blank cheque” ensuring recovery of all legal fees and disbursements, as Justice Donegan discussed in Hobbs v. Warner, 2020 BCSC 1180, at para. 12.

In Hobbs v. Warner, Donegan J. determined that it was appropriate on an assessment of full indemnity costs under the PPPA to adopt the approach taken on a review of a lawyer’s bill under the LPA, which requires the registrar to consider the factors set out in s. 71(4) of the LPA.

In reaching this determination, Donegan J. referred to two decisions of the Registrar of the B.C. Court of Appeal, although neither of them involve the assessment of full indemnity costs awarded in estate proceedings: Wanson (Bristol) Development Ltd. v. Sahba, 2019 BCCA 459 [Wanson], and Pallot v. Douglas, 2018 BCCA 315. Decisions of the Court of Appeal Registrar are not binding on the Registrar of the Supreme Court, but they provide helpful guidance.

In Wanson, Registrar Outerbridge contrasted full indemnity costs to special costs, determining that when assessing full indemnity costs, “the question is subjective: examining the bills of the solicitor in this matter, are the charges reasonable in the circumstances?” (para. 14). Justice Gibb-Carsley repeated this phrase in Mah Estate v. Lawrence, 2023 BCSC 1256, at para. 17 [Mah Estate] (an estate case, but one involving indemnity costs under an agreement).

In Mah Estate, Gibb-Carsley J. emphasized that s. 71 of the LPA (or an analysis akin to it) “does not require mathematical precision … instead, the assessor is entitled to employ a global approach to reach a ‘fair fee’ in the circumstances” and that “the costs awarded on a full indemnity basis must ultimately be ‘fair, reasonable and proportionate’” (para. 18).

In their written submissions, both parties agreed that it is appropriate to follow the approach Donegan J. adopted in Hobbs v. Warner, that is, that I should apply the s. 71(4) LPA factors when reviewing the bills on which the respondents’ full indemnity costs are based.

Section 71(4) of the LPA provides:

71 (4) At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including
(a) the complexity, difficulty or novelty of the issues involved,
(b) the skill, specialized knowledge and responsibility required of the lawyer,
(c) the lawyer’s character and standing in the profession,
(d) the amount involved,
(e) the time reasonably spent,
(f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,
(g) the importance of the matter to the client whose bill is being reviewed, and
(h) the result obtained.

Vancouver Estate Lawyer- Interim Distributions From the Executor

Trevor Todd and Jackson Todd have handled contested estates including obtaining interim distributions of estate for over sixty comb9ined years.


The court retains a general jurisdiction over the actions of executors/trustees and will normally require that a trustee discharge his or her duties with good faith, and with the standard of care of a reasonable and prudent person of business.

However, where a trustee is granted powers which are to be exercised at his or her sole discretion, the court traditionally would not interfere, unless the trustee had not turned his or her mind to the exercise of the discretion, or they had acted unfairly or in bad faith.

The case of Re: Blow Press Ltd. v U.S.W.A. (1977) O.R. (2d) 516 held that the court had jurisdiction to intervene in the exercise of a discretion by trustees in three situations:

1) a mala fide exercise of such a discretion;
2) a failure to exercise such a discretion; or
3) a deadlock between trustees as to the exercise of such a discretion

It is not uncommon for a will or a trust to be drafted with adjectives giving trustees “absolute,” “uncontrolled,” or “full discretion” to trustees, to use their authority. The courts traditionally have not interfered unless they found mala fides with respect to its exercise of such discretion.

In recent years, however, there are now a number of estate decisions in British Columbia that have allowed for interim distributions in certain circumstances, when the trustee is refusing to distribute under their discretion.

While WESA does not specifically allow for interim distributions of intestate estates, beneficiaries are no longer required to wait one year from the intestate person’s death to distribute the surplus of the personal estate, as was previously required by section 74 of the Estate Administration Act.

The executor can now distribute all forms of assets after 210 days have passed since the issuance of the representation grant, provided that no proceedings have been commenced, which might affect the distribution of the estate.

A new provision, section 155 (2) WESA prohibits a personal representative from distributing the estate after the 210 day waiting period without a court order if:

1) proceedings of been commenced as to whether a person is a beneficiary or intestate heir;
2) a variation claim has been brought; or
3) other proceedings have been brought, which may affect the distribution him.


Trustees generally have the right to exercise their discretion to refuse to make any interim distribution to the beneficiaries until their accounts are approved by the court, by way of a passing of accounts.

In Reznik v Matty 2013 BCSC 1346, an application was brought by three of four residual beneficiaries for an order directing distribution of $15,000 to each of them from the $50,000 held back in the estate. The executor of the estate was the fourth beneficiary, and it had been 13 years since the deceased will maker had passed away. The court held that the power given to the executor under the will to retain a portion of the estate did not displace the duty to distribute the assets.

In assuming general jurisdiction, Reznik was followed in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), which stated at paragraph 282:
“As a superior Court of general jurisdiction, the Supreme Court of Ontario has all of the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court’s jurisdiction is unlimited and unrestricted in substantive law in civil matters.”
The court reasoned that there was significant delay, and that the estate was of significant value and liquidity that the executors assent to the distribution was compelled, and thus the executor was ordered to pay $10,000 to each of the residual beneficiaries.
In Davis v Burns Estate 2016 BCSC 1982, the court held at paragraph 31 that the following criteria govern whether an interim distribution should be made:
a) the amount of the benefits sought to be distributed as compared to the value of the estate;
b) the claim of the beneficiaries on the testator;
c) the need of the beneficiaries for money; and
d) the consent of the residuary beneficiaries to the proposed distribution

In Davis v Burns, the applicant was 76 years of age and had been the deceased will maker’s common-law spouse for five years and had been friends with he and his wife for many years prior. The former spouse was bequeathed 20% of the assets of the estate (approximately $500,000).
The applicant had no funds and a negative monthly cash inflow. The court found that the other parties to the court action would not be prejudiced by an interim distribution to him, and so the court ordered an advance of $250,000, given his advanced age, and the will’s specific direction that he should “have fun” with the monies after her death.
Nykoryak v Anderson 2017 BCSC 1800 was a wills variation action that followed the criteria set out in Davis v Burns and ordered an interim distribution to each of the personal defendants from the estate funds in the amount of $50,000 each.
Each of the applications provided evidence of their financial need and hardship and the court found that the plaintiff’s security was still more than adequately protected from any award at trial.

In Re Zanrosso Estate 2021 BCSC 2928, the court commented that the new provisions of WESA did not directly address the possibility of court intervention, should an executor/trustee refuse or neglect to distribute the estate.

Counsel in this decision agreed that the court had general jurisdiction to order an interim distribution of estate assets and relied on Reznik v Natty as the authority.
The court found that it had authority to order a personal representative to make an interim distribution of an estate, further to its general jurisdiction and stating that such authority is discretionary and must be exercised in order to do justice between the parties.

The court referred to the criteria set out by the Court of Appeal in Hecht v Hecht 1991 BJ 3475, but stated that it was not an exhaustive list of potential considerations:
The court found that the factors to be considered by the court when deciding whether to exercise its discretion to grant leave to the executors include:

(a) the amount of the benefits sought to be distributed as compared to the value of the estate;
(b) the claim of the beneficiaries on the testator;
(c) the need of beneficiaries for money; and
(d) the consent of the residuary beneficiary to the proposes distribution.”

The court stated that since the legislator had not seen fit to expressly provide for interim distributions from an estate over the objection of the personal representative, that an order should only be made in exceptional circumstances, and with the burden on the applicant to justify the issuance of such an order.

In the case of Re Antonias Estate 2021 BCSC 2388, the court ordered an interim distribution where the applicants were the sole beneficiaries of the residue of the estate, sharing equally and were siblings ranging in age from 76 to 89 years of age, some of them with health issues, and some with concerns that they would pass away before the estate was distributed.
The executor did provide an offer to make an interim distribution, the same that was sought in the court order, but did so on the basis that a release would be signed and returned. The beneficiaries did not comply with the request to sign the release.

The applicants relied on the decision of Reznik v Matty and the quote of Austin v Beddoe (1893) that if an executor has assented to an interim distribution and the assets available to the estate after an interim distribution are sufficient to cover all outstanding liabilities, and had basically made that acknowledgement, it is appropriate to have assets released.
The court ordered the beneficiaries to indemnify the executor from any loss arising from the interim distribution in the event that there was an estate shortfall in assets verus liabilities.

The court ordered an interim distribution of $528,000 and noted that the estate holdback would be approximately $447,000 over and above executor’s fees of % 3.5.

Since approximately 2015, the British Columbia courts have been more willing to override the typical absolute discretion of a trustee as to whether or not to make an interim distribution. Historically, the courts would only interfere where there was mala fides on the part of the trustee before they would order a distribution of estate assets.
As the recent cases indicate, if there is evidence of an appropriate set of facts that “justice is done” by ordering an interim distribution, then the courts will seriously consider doing so.

Such evidence should consist of matters such as: inordinate delay, financial need, the advanced age of beneficiaries, holdback protection for the remaining beneficiaries’ interests, sufficient funds to pay future debts, with an indemnity from the beneficiaries in the event of a shortfall.
If such evidence is accepted by the court, then recent cases in British Columbia indicate that the court will give serious consideration to ordering an interim distribution of estate assets, if necessary over the objection of the executor/trustee.

As the court in the Zanrosso decision stated regarding the criteria set out by the Court of appeal in the 1991 Hecht decision – “this is not an exhaustive list.” This statement appears to indicate a greater willingness of the BC courts to order interim distributions of estate assets in appropriate circumstances.

BC Estate Lawyer- Gratuitous Transfers- Gift, Loan or Trust

Trevor Todd and Jackson Todd have practiced law re contested estates for over sixty combined years, including the thorny question of contested gratuitous transfers being either a gift, a loan or a trust.


The Gratuitous transfer of assets is a commonplace fact pattern in estate litigation. A small minority of purported gifts are substantiated as to the intention of the donor, which then forces the courts to assess the reliability of the evidence if any as to the intention of the donor why were the transfers made.

The issue of the intentions not being documented is probably most common in family transactions such as the proverbial “Bank of Mom and Dad”.

The most common forms of contentious transfers are made gratuitously through the use of joint tenancy, in both real property and investments such as bank accounts. By reason of the nature of the joint tenancy, upon the death of a joint tenant, the surviving joint tenant automatically becomes the registered owner of the property through the right of survivorship. This happens immediately upon death, and the asset does not form part of the estate of the deceased nor attract probate fees.

Such gratuitous transfers do however attract estate litigation, and the question for the courts to determine is whether the gratuitous transfer was a loan, a gift, or is subject to a resulting trust.

Determinations of whether a gratuitous transfer (usually real property) was a gift or resulting trust are more common in the courts than whether the advancement of funds was a loan or not.

Such cases are all fact determinative; the purpose here is to give an overview of the law relating to each of the three possible outcomes of inter-vivos gratuitous transfers.


A loan is a specific form of contract. As such, it requires mutual concordance between the parties as to the existence, nature and scope of their respective rights and duties. Like other contracts, it may be evidenced orally, in writing, by conduct or by a combination thereof: Biehl v. Strang, 2011 BCSC 1373, paras. 326-330.

The essential elements of a loan were discussed. in Lee v. 1137434 Alberta Ltd., 2009 BCSC 284:

a principal sum;

i) ii) placed with a borrower;
ii) iii) on agreed terms for the payment of interest; and
iii) iv) liability on the borrower’s part for return of the principal with accrued interest. A loan has also been defined as delivery by one party and receipt by another of money on agreement, express or implied, to repay the money with or without interest:


Generally speaking, a gift is a voluntary transfer of property to another without consideration. A true and proper gift is always accompanied with delivery of possession, and takes effect immediately.

This is opposed to a loan, which is a form of contract that involves mutual exchanges of obligations, the transfer by way of a gift involves a gratuitous unilateral transaction.
The central element of the gift is the intention of giving to another without any expectation of renumeration. The gift cannot be revoked by the donor or made void by another once the lawful property is vested.
For a gift there must be:
a) an intention to make a gift on the part of the donor, without consideration, or expectation of renumeration;
b) an acceptance of the gift by the donee; and
c) a sufficient act of delivery or transfer of the property to complete the transaction.

To make a valid gift the donor must have done everything that according to the nature of the property, was necessary to be done to transfer the property and make the transfer binding on the donor. McKendry v McKendry 2017 BCCA 48 at para. 31

The court will not perfect an incomplete gift. As a result, where there is a mere promise or unfulfilled intention, the court will not force the intended donor to complete the gift.
The standard for proving a gift is on the balance of probabilities.

A presumption of resulting trust arises where a person makes a voluntary transfer into the name of another person. This is because equity presumes bargains and not gifts.
The intention of the donor at the time of the transfer is key to determining whether the transaction gives rise to a resulting trust.

Generally this can be addressed by answering the following question: did the donor intend to make an immediate absolute gift or did the donor intend the transaction to be merely one of convenience. If it is the latter than the transferor is said to be holding beneficial title of the assets in a resulting trust for the donor

Where there is no consideration for a transfer the law presumes that the transferor intended to create a trust, rather than make a gift.

The legal presumption of resulting trust applies to most gratuitous transfers, but it is a rebuttable presumption of law. The party who obtains the benefit of the transfer must on the balance of probabilities rebut this presumption that the transferor intended to gift at the time of the transfer, or that there was evidence of the transferor’s contrary intention.

The leading case is Pecore v Pecore SCC 17.

The courts are primarily attempting to determine whether the intention of the donor at the time of the gratuitous transfer was to make a gift or has a resulting trust been created.
The court should only rely on the presumption of resulting trust where there is insufficient evidence to establish the transferor’s actual intent at the time of the transfer: Fuller v Fuller 2010 BCCA 421.

In Franco v. Franco Estate 2023 BCSC 1015, the court confirmed that if the transferee leads evidence showing that it is more likely than not that the transferor intended the transfer to be a gift, the presumption of resulting trust does not apply.

The presumption of advancement rebuts the presumption of resulting trust. Where a person makes a voluntary transfer to their spouse or minor child, it is presumed that the transfer was made with the intent of advancing the property to them, i.e., a gift. The presumption of advancement does not apply when a parent transfers property to an adult independent child. Recent case law indicates that it is increasingly questionable whether the presumption of advancement any longer applies to spouses.


Grenier v Williams 2020 BCSC 462 is a case where a daughter advanced $23,000 to her father to assist him in purchasing a property. Years later acrimony developed and there was litigation wherein the daughter alleged a loan and the father said it was a gift.
There was no documentation of the financial advancement. The court decided primarily on credibility that there was a loan and not a gift.

Weinhaupt v Paracy 2017 BCSC 1662 is a classic Bank of Mom and Dad situation except for that it was well documented. The apretyns advanced significant funds to a child and spouse in order to assist in the financing of the purchase of a home. The case law can be divided in terms of finding either a loan or a gift depending on the specific findings of fact that are largely based on evidence of the intention of the donors.

The more the transaction is documented the more likely the intention of the parties can be determined.
After reviewing the evidence, the court concluded that the funds were a loan and not a gift. There was contemporaneous documentary evidence of a loan, such as a promissory note, and security for the loan in the form of a mortgage. There was a reasonable expectation or likelihood of repayment once the property was sold.

The court cited Locke v Locke 2000 BCSC 1300 in determining whether it was a loan or a gift. (This passage from Locke was adopted by the Court of Appeal in Kuo v. Chu 2009 BCCA 405):

1. the presumption of advancement no longer applies between adult independent children and their parents;
2. between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;
3. the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or loan;
4. the factors to be considered are:
a) whether there were any contemporaneous documents evidencing a loan;
b) whether the manner for repayment is specified;
c) whether there is security held for the loan;
d) whether there are advances to one child and not to others, or advances of unequal amounts to various children;
e) whether there has been any demand for repayment before the separation of the parties;
f) whether there has been any partial repayment and whether there was any expectation or likelihood of repayment.

Anyone who intends to make a gift of real or personal property for little or no consideration must ensure that the intention of the donor is well documented. A deed of gift given under seal, along with the statutory declaration of the intention to gift is probably the best evidence that the courts will rely upon.

If available, the most compelling evidence is direct evidence of the transferor’s intention at the time of transfer, but circumstantial evidence from that time is also important.
Post-transfer conduct is also relevant, but is typically treated in a cautionary manner by the courts as it may be self- serving in the reason for the change in intention.
The courts attempt to determine what the true intention of the transferor was when the gratuitous advancement was made. Only if it is not clear as to the intention do the presumption of advancement or presumption of resulting trust arise.
Where a parent makes a gratuitous transfer to an independent adult child, the presumption of resulting trust arises and the transferee must prove on the balance of probabilities that the transferor intended the transfer as a gift: Pecore v Pecore 2007 SCC 17 at paras 24-26.


Franco v Franco 2023 BCSC 1015

In March 2014, the deceased transferred monies into a joint account and real property to his third child. The court found that he did so with the intention of gifting the monies to the third child in order to defeat the claims of the first two children with whom he had an acrimonious relationship. Approximately 8 months later, the deceased executed a deed of gift confirming he had gifted one half of the property as a joint tenant to the third child. Affidavit evidence of independent parties confirmed that it was the intention to gift rights of survivorship in real property and bank accounts owned by him at the time he made the transfers. The court followed the reasoning of McKendry v McKendry 2017 BCCA 48 related to the requirements for a legally binding gift.
Wong v Huang 2012 BCSC 975

The plaintiff was an 86-year-old man who is suing his 12-year-old great nephew for the return of property that the plaintiff transferred to the defendant when he was six years old. The plaintiff was estranged from his children and changed his will in 2000 to provide for the defendant who had recently been born. In 2006 the plaintiff transferred his property into joint tenancy with the infant and wrote several letters to his family, explaining that he had gifted the property to the said child, and that he had changed his will to leave everything to him.
The plaintiff presumably had a change of heart and sued to have the property returned, but the court held that the plaintiff had intended to gift the property to the defendant, and thus the gift was not revocable.

The case law seems to indicate that where there are undocumented gratuitous transfers of assets, it is more likely than not that the court will find a resulting trust unless there is clear evidence of intention to gift.

The presumption of resulting trust provides a guide for the courts in resolving disputes over transfers were evidence as to the transferor’s intent in making the transfer is unavailable or unpersuasive.

Flesjer v Butterfield 2019 BCSC 2332

A frail elderly and terminally ill mother of four children transferred all of her financial investments and real property to one of four children who was the most financially successful.
The court found that the mother did not intend to gift the property to that child. The transfer was done for two reasons – to avoid probate fees and because she trusted him as the most financially adept child to share the assets with his siblings. The court rejected the defendant’s defence that the monies were gratuitously transferred to him for payment of all of the services that he had provided to his mother over the years.

TLG v KMG 2019 BCSC 1236
This case involved a dispute between parents and their daughter with respect to the parents advancing $110,000 to assist the daughter in purchasing a home for her use. The parents won the case due to the law of resulting trusts.

The parents advanced $110,000 to their daughter in 2011 to buy a home. The parents stated that it was an investment for their retirement while their daughter said it was a gift. Neither of the parties sought legal advice or documented the arrangement.

The property was registered as to an undivided 99/100 interest in the name of the daughter and an undivided 1/100 interest in the names of the parents.
The parents stated that they trusted their daughter, but in hindsight their evidence at trial was that it was a mistake.
The parents paid a contractor to renovate the basement suite and paid for the appliances. They used funds from their RRSPs to do so, and thus incurred tax consequences for withdrawing the funds.
The matter came to a head after five years when the parents informed the daughter that they wished to sell the property as they had a large tax bill to pay because of the RRSP withdrawals.

In response, the daughter told her parents “No,” and that “it was her house”.
The court found that the parents had been financially supportive of the daughter for many years and had given her a lengthy education. That history of support and its nature, weighed against the daughter’s assumption that the funds the plaintiffs advanced for the purchase of the property was a gift.
The court found that the daughter had failed to rebut the presumption of resulting trust, so the court ordered the property sold and that the defendant held her interest in the property as trustee for the plaintiffs.


Disputes frequently arise in estate litigation as to whether gratuitous transfers were a loan, a gift or a resulting trust. This is often the case in family situations which invariably are not documented nor is independent legal advice obtained.

The law is reasonably well settled as to what is a gift, a loan and a resulting trust and the courts have certain presumptions that they will rely upon when it is not clear as to what the intention of the donor was when the gratuitous transfers were made. The overall conclusion is that donors should obtain legal advice and properly document gratuitous transfers as to their intention.

Contested Estates In BC- Removing an Executor

Trevor Todd and Jackson Todd have over sixty years experience in handling contested estate disputes including  removing an executor or trustee

An executor may be removed and replaced under ss. 158–159 of the WESA, and a trustee may be removed and replaced under ss. 30–31 of the Trustee Act. The tests for removal of an executor and of a trustee are substantially the same. The WESA and the Trustee Act do not vary the bases on which the Court has inherent jurisdiction to remove or replace an executor or trustee.

The basis on which the judicial discretion to remove is to be exercised is well-established and has been cited in many cases.

The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.
To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.
The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84] What circumstances justify the removal of a trustee? In Letterstedt …, the court established guidelines justifying the removal of a trustee (at 385-389):

1. If the Court is satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
2. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.
3. In exercising the delicate jurisdiction of removing trustees, the Court’s main guide must be the welfare of the beneficiaries. It is not possible to lay down any more definite rule in a matter that is so “essentially dependent on details often of great nicety.” The Court must proceed to look carefully into the circumstances of the case.
4. Where a trustee is asked to resign, and if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign.
5. The lack of jurisprudence in respect of the removal of a trustee reflects that a trustee when asked to do so, will resign.
6. If, without any reasonable ground, the trustee refuses to do so the court might think it proper to remove him.
7. Friction or hostility between trustees and the beneficiary is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is not to be disregarded

In Fitzgerald v. Hill, 2022 BCSC 968, despite almost all the beneficiaries seeking to have the executor and trustee removed and a finding that the executor and trustee should have performed his duties in a more cooperative and open manner, Justice Coval did not order removal. He found no endangerment to the estate assets and that no preferential treatment or hostility interfered with the proper administration of the estate.

There is a  high threshold that must be met for a removal order and  each case turns on its own particular facts and the context of the estate in issue.