Executor Renunciation

Executor Renunciation

Executor or administrator renunciation  as the personal representative of the estate may occur for a myriad of reasons.

The role of the executor/administrator is to carry out the directions of a will in the case of an executor, and the intestacy rules of WESA in the case of an administrator, (unless the will is the annexed).

The personal representative has no discretion to vary from those strict directions and statute, unless by court order or agreement of all of the named beneficiaries or parties who would inherit on an intestacy, and an order of the court approving that variation.

Significantly where a person renounces probate of the will of which he or she is appointed executor, his or her rights and respect to the executorship wholly cease.

Some of the general rules relating to the renunciation of an executor/administrator are as follows:

  1. If the named executor intends to challenge the contents of a will, then he or she must renounce as executor by reason of the inherent conflict of interest. Simply put, a person cannot sue oneself, and the executor or administrator in a wills case is always a necessary party. Harrison v Harrison (1982) 40 BCLR 143 ;
  2. Any party who has a prior right of administration is required to renounce or to be cited before administration will be granted to any other person. This rule has been somewhat relaxed in latter years, especially where the person entitled in priority was so entitled by the practice of the court and not by statute, the court has relaxed the rule and granted administration to one with an inferior title without requiring the renunciation or citation of those with the superior right.
  3. By renunciation one waives or abandons one’s right to administration and is not entitled to be cited or summoned on an application for a grant of administration;
  4. An appointed executor of a deceased executor who obtains probate without knowledge of a prior estate of which the deceased was executor, may be allowed to renounce executorship of the prior estate. Re Mokelly (1967) 60 WWR 97. The court emphasized that the executor had no knowledge of a previous estate, or debts of the previous estate, and that all of the beneficiaries of previous estate accepted the renunciation;
  5. If it is in the best interests of the beneficiaries and the estate, and executor may retract renunciation of executorship before probate is granted. MacIsaac v McDonald (1983) 148 DLR (3d) 553 ( NSCA);
  6. Only in very exceptional circumstances will the courts permit an executor to retract the renunciation of a previously granted executorship, and to permit such a retraction a positive benefit must be shown. McKee Estate 2003 BCSC 466.

McKee cited Gill, In the Goods of (1873) LR 3 PD 113 , where it was held that were the only reason given for the application to retract her renunciation was that the applicant had changed his mind, the court held that it did not appear that it will be for his benefit or for that of anyone else that he shall be allowed to retract it, and declined the application.

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