Removal of Executor

Removal of Executor
 Re Kolic Estate 2016 BCSC 1312 contains an excellent summary on the criteria for the removal of executor.
In Kolic the court ordered the removal of executor for basically choosing sides in the litigation concerning the very will that she was to remain impartial over pending the litigation.
22      The authority to remove Mary and substitute another individual as executor to Violet’s Will is found under s. 31 of the Trustee Act, R.S.B.C. 1996, c. 464, and the inherent jurisdiction of the court. Given that a Master does have any inherent jurisdiction to exercise, the basis for Joseph’s remedy must be s. 31. That provision reads as follows:
31 If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.
23      In Miles v. Vince, 2014 BCCA 289 (B.C. C.A.), the court adopted the following guidelines when considering an executor’s removal and substitution:
84 What circumstances justify the removal of a trustee? In Letterstedt v. Broers (1884), 9 App. Cas. 371 (J.C.P.C.), 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.
24      The first question to be answered is whether Mary is properly fulfilling her role as executor. In my view, she is not.
25      The primary duty of an executor is to preserve the estate assets, pay the debts and distribute the balance to the beneficiaries entitled under the Will, or in accordance with any order made varying the terms of the Will. The executor should not pick sides between beneficiaries, and should be indifferent as to how the estate is to be divided: Quirico v. Pepper Estate, 1999 CarswellBC 2177 (B.C. S.C.).

Recommended Posts