In Yurkiw Estate 2021 BCSC 1015, the applications of two sibling executors to pass over the other and be the sole executor were dismissed and a third party administrator was appointed pursuant to S. 158 WESA.
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 in Yurkiw were not for the removal of the other as executor, and instead that the other be ” passed over” and not permitted to act as executor it is common ground that the considerations in Dunsdon are relevant to passing over applications. This approach was adopted in Weisstock v. Weisstock, 2019 BCSC 517.
