Appointing an Administrator of a Will

Berlinguette Estate 2022 BCSC 1098  discussed the criteria for appointing an administrator of a will and Sections 130 and 132 WESA.

Sections 130 and 132 of WESA address the appointment of an administrator for a person who dies without a will:

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;

132 (1) Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

(2) The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.

In order for the court to appoint an administrator under WESA, that person must be independent and indifferent to the outcome of the estate’s distribution.

The Court of Appeal in Ruffolo v. Juba-Ruffolo, 2005 BCCA 26, determined that one of the relevant considerations for appointing an administrator was whether the potential appointee could act with detachment and even-handedness:

[15] In this case, there is a need for detachment and even-handedness to ensure that the estate is administered for the benefit of each of the beneficiaries under the statute, that is, the appellant widow and the child. With the respondent’s acknowledged animosity toward the appellant, it is not possible to conclude that the detachment required to properly administer the estate would be present.

In Raye v. Phillip Estate, 2021 BCSC 387 at para. 27, Justice Norell considered the factors a court must consider in exercising its discretion to appoint an administrator, including neutrality and a lack of actual or perceived conflict of interest:

[27] In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate. The court should appoint an administrator who is likely best able to convert the estate to the advantage of those who are interested in it: Flores v. Mendez, 2014 BCSC 951 at paras. 35-41. The support of the majority of beneficiaries is a significant factor in determining an appropriate administrator: Godby Estate (Re), 2015 BCSC 1809 at para. 47. An administrator must act with “detachment and even handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. An administrator should play a neutral role and not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. An actual or perceived conflict of interest may cause a court to appoint a new executor or administrator: Ching Estate (Re), 2016 BCSC 1111 at para. 22.

In El-Adams Estate (Re), 2022 BCSC 75, Justice Forth considered whether the mother of a deceased daughter should be appointed the interim administrator of her daughter’s estate. The mother was engaged in a legal proceeding with a person with whom her daughter had been in a relationship. That individual claimed that he should be declared the daughter’s husband, thus entitling him to inherit her estate. The mother of the deceased opposed the application for such a declaration and sought to be appointed the estate administrator.
Justice Forth acknowledged that the deceased’s mother was a person of integrity, but held that it was inappropriate to appoint her as the administrator because she was in litigation regarding the estate with the individual seeking a declaration that he was deceased’s husband. In setting out why the court must avoid appointing the mother, Forth J. commented on the importance of the administrator being neutral and indifferent to the outcome:
[39] I turn now to whether the petitioner is the appropriate person to be appointed. I have no hesitation in accepting that the petitioner is a person of integrity that has strived to do her best to care for Jenna. As a mother, she has the tragic burden of coping with the loss of her daughter. However, in my view, appointing her as an interim administrator will likely result in more strife between the respondent and Jenna’s family. It is unfortunate that issues of distrust have already arisen. An administrator must act with “detachment and even-handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15.

[40] Until the issue of the respondent’s status is determined, there are steps that the interim administrator may have to take to deal with the two outstanding lawsuits. The two actions are: the respondent’s action that he has continued against Adams Glass; and the action that Kayla has against Adams Glass and Jenna. In my view, it is inappropriate for the petitioner, as the mother of Kayla, to be providing instructions on behalf of the defendants in this lawsuit, where her daughter is the plaintiff. I anticipate that the petitioner may well be a witness in that action, in that it involves Kayla’s allegations of undue influence against her sister, Jenna, respecting their father, Mr. Adams.

[42] As matters currently stand, both the petitioner and respondent are in a potential conflict since one or the other will be inheriting the Estate. An administrator should play a neutral role. An administrator should not pick sides between beneficiaries, and should be indifferent as to how the estate is to be divided: Raye at para. 27. Neither of these parties is indifferent.

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