In Re Yurkiw estate 2021 BCSC 1015 two executors applied to have each other passed over so as to be the sole executor but the court dismissed both applications and pursuant to S. 158 WESA appointed a third party administrator.
Section 158 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, provides for the passing over of a person entitled to become a personal representative if the court considers that the person “should not be granted probate or administration.”
In Dunsdon v. Dunsdon, 2012 BCSC 1274 at paras. 202-203, Justice Ballance outlined considerations for removal of a trustee:
” Put broadly, a trustee may be removed where his or her acts or omissions endanger the trust property or demonstrate a want of honesty, of reasonable fidelity, or of the proper capacity to execute the duties of office: Conroy v. Stokes [1952] 4 D.L.R. 124 (B.C.C.A.). The existence of friction between the trustee and one or more beneficiaries is usually not sufficient, of itself, to justify removal of the trustee: Erlichman v. Erlichman, 2000 BCSC 173; Re Blitz Estate, 2000 BCSC 1596.
However, where there is dissension among the trustees themselves by which the trust administration grinds to a standstill or otherwise hampers the proper administration, the courts tend to remove one or more of them. In those instances, misconduct per se is not an essential prerequisite: Re Consiglio Trusts (No. 1) (1973), 36 D.L.R. (3d) 658 (Ont. C.A.); Wilson v. Heathcote, 2009 BCSC 554.
In all cases, the fundamental guide must be the welfare of the beneficiaries: Letterstedt v. Broers, (1884), 9 App. Cas. 371 (South Africa P.C.).
While the applications before the court were not for removal, it is common ground that the considerations in Dunsdon are relevant to passing over applications. as was done in : Weisstock v. Weisstock, 2019 BCSC 517.
