Vancouver Estate Litigation: Criteria to Remove an Executor

Trevor Todd and Jackson Todd have over 65 combined years of experience in estate litigation including the removal of an executor.

Re Kandola estate 2026 BCSC 630 gave an exhaustive review of the various criteria that may result in the removal of an executor.

Although the cited cases are helpful in setting out the high threshold that must be met for a removal of an executor order, each case turns on its own particular facts and the context of the estate in issue.

The basis for the exercise of judicial discretion to remove an executor or trustee is not controversial. Justice MacNaughton (then of this Court) summarized the relevant legal principles in Chesko v Chesko estate 2024 BCSC 394:

  1. a)The leading authority continues to be Conroy  v Stokes 1952 4 DLR 124(at para. 53);
  2. b)The main consideration is the collective welfare of the beneficiaries (at para. 53, citing Conroyat 126);
  3. c)A court will not lightly interfere with a testator’s choice of trustee (at para. 54, citing Nieweler Estate (Re), 2019 BCSC 401 at para. 27);
  4. d)Not every actual or perceived conflict should lead to disqualification of a trustee or an executor (at para. 54, citing Conroyat 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43);
  5. e)Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee (at para. 54, citing Miles v. Vince, 2014 BCCA 289 at para. 84);
  6. f)Perfection is not expected of an executor or trustee (at para. 55, citing In The Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 22);
  7. g)The question is whether the trustee’s acts or omissions endangered the administration of the trust (at para. 55, citing Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burkeat para. 29);
  8. h)To remove an executor or trustee for misconduct, the evidence must show that they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity (at para. 56, citing Conroyat 127; see also Nieweler Estate (Re) at para. 33);
  9. i)Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason (at para. 57, citing Mardesic v. Vukovich Estate(1988), 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (B.C.S.C.) at paras. 18–19; Burke at paras. 29, 31); and
  10. k) Grounds for removing an executor may include a failure to disclose estate information: Kyle Estate v. Kyle, 2016 BCSC 855 at para. 88; varied on other grounds 2017 BCCA 329.
  11. L) The duty of an executor is to settle the affairs of the deceased and to distribute the estate in accordance with the terms of the will in a timely manner: Dirnberger Estate, 2016 BCSC 439 at paras. 13 and 31. A failure to act can amount to grounds for removal: Dirnberger Estateat para. 16. In Levi-Bendel v. McKeen, 2011 BCSC 247, the executor’s refusal or reluctance to proceed with the administration of the estate was found to amount to a want of reasonable fidelity and a failure to carry out her duties: paras. 21 and 23.
  12. M) Where an estate trustee has been given a broad discretion to postpone converting or selling an estate property, courts should not interfere with such a discretion and “so long as he has a bona fideintention to perform his obligation to convert and distribute, the exercise of his discretion should not be interfered with by this court”: Hriczu v. Mackey Estate, 2011 BCSC 454 at para. 17. This discretion must be exercised honestly, reasonably, intelligently, and in good faith. It cannot be exercised in such a way as to give the executor a personal benefit or put him in a conflict of interest, and it must not be exercised in such a way as to defeat the purpose of the testator: Hriczuat para. 16.
  13. N) Beneficiaries of an estate have the right to ask the personal representative for accurate information about the estate. A personal representative has an ongoing duty to maintain records and account for their dealings with estate property at common law and under s. 142 of WESAand s. 99 of the Trustee Act.
  14. O)The court’s paramount concern in determining whether to remove a personal representative is the welfare of the beneficiaries: KyleEstate at para. 88. In Kyle Estate, the executor comingled trust assets with his personal assets. Justice Burnyeat determined that the executor had to be removed on multiple grounds, any one of which would have warranted his removal: Kyle Estate at para. 90. I conclude that the executor’s  decision to commingle his own funds with estate funds warrants his removal as executor: Kyle Estate at para. 90.

 

  1. P) A conflict of interest may disqualify an executor from acting in that capacity: Weisstock v. Weisstock, 2019 BCSC 517 at para. 43. Such a conflict may arise if the estate might have a claim against the executor. In Veitch v. Veitch Estate, 2007 BCSC 952, the executor’s personal interest was found to be in direct conflict with the interests of the estate and he was removed: at para. 35

 

The primary duty of an executor is to preserve the assets of the estate: Burke v. Burke, 2019 BCSC 383 at para. 46

A trustee may be removed if they deal with estate assets without the knowledge or approval of the beneficiaries in a manner that endangers those assets and this results in a personal benefit to the trustee; such actions demonstrate a want of fidelity and a conflict of interest and duty: Kyle Estate at para. 87 (varied on other grounds, 2017 BCCA 329) citing Hall v. Hall (1983), 45 B.C.L.R. 154 (B.C.S.C) at p. 157. A trustee is expected to exercise the standard of care and diligence that a person of ordinary prudence would in managing their own affairs: In the Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 31.

 

An executor may be removed where:

  1. a)Their duties conflict with their personal interests, estate assets are endangered by the executor’s conduct, and the executor benefits at the expense of the estate: Hall v. Hall, 1983 CanLII 396 (BC SC); Veitch Estate.
  2. b)They fail to disclose estate information to beneficiaries despite repeated requests: Kyle Estate, varied on other grounds, 2017 BCCA 329.
  3. c)They do not comply with their duties to settle the affairs of the estate and distribute to beneficiaries, or where their actions delay final distribution of the estate and were not in the best interests of the beneficiaries: McKay; Nieweler Estate (Re).

 

 

 

Vancouver Estate Lawyer – Wills Variation – Executor Removed For Cause

Executor Removed For Cause

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estate disputes including the removal and substitution of a new executor.

Re  Rawji Estate 2023 BCSC 1652 is a good case exemplifying when the court will remove and substitute an executor for inter alia conflict of interest and other serious factors. The case also carefully reviews the duties of an executor.

The facts involve an application to remove the executor of an extremely acrimonious family that involved many days of court. The court found there were at least five reasons to remove the executor,

  •  his extreme animus to one of the beneficiaries,
  • a debt owing by the executor to the estate,
  • the fact that the executor sued the estate when that is contrary to the rule of the executor must remain neutral,
  • a finding that he jeopardized estate assets
  • an inability for him to move the estate administration forward.

The court provided a detailed explanation about each of the five reasons to remove the executor and provided caselaw to support each area.

The will itself divided the estate assets equally amongst the children which normally does not give rise to an application to remove an executor.

THE LAW

It is settled law that the primary duty of an executor is to preserve the estate assets, pay the debts, and distribute the balance to the beneficiaries under the will or in accordance with any order varying the will. An executor should 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. That said, pre-existing hostility between an executor and one or more of the beneficiaries does not necessarily disqualify the executor from performing his or her duties, so long as the executor is capable of setting aside that hostility with a view to the interests of all the beneficiaries: Ali v. Walters Estate, 2018 BCSC 1032 at paras. 104-106.         Section 158 of the Wills, Estates and Succession Act. S.B.C. 2009, c. 13 [WESA] provides that the court may remove the personal representative of an estate if the court considers that the personal representative should not continue in office. The authority to remove an executor is also found in the inherent jurisdiction of the court: McKay v. Howlett, 2003 BCCA 555 at para. 17.

[34]         As set out in Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37, the court’s decision to remove an executor should be guided by a consideration of the following factors:

  1. The court will not lightly interfere with the testator’s choice of estate trustee and clear evidence of necessity is required;
  2. removal of an executor should only occur “on the clearest of evidence that there is no other course to follow”;
  3. The court’s main consideration is the welfare of the beneficiaries; and
  4. The estate’s trustee’s acts or omissions must be of such a nature as to endanger the administration of the estate.

In deciding whether to remove a trustee, the court’s main guide should be the welfare of the beneficiaries. The question is whether the estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries: Parker at para. 40.

An administrator must act with detachment, even-handedness and without animosity: Berlinguette Estate (Re), 2022 BCSC 1098 at paras. 19, 28-30; Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. The court has jurisdiction to remove an executor when there is evidence the executor has acted in a manner that endangers the estate or, as executor, has acted dishonestly, without proper care, or without reasonable fidelity. As set out in Kyle Estate v. Kyle, 2016 BCSC 855 at para. 88, reasons for removal may include a “lack of neutrality, failure to disclose estate information or other misconduct including treating one or more of the beneficiaries with hostility.”

While mere dissension or friction with the beneficiaries is not of itself a reason for the removal of the executor, where the hostility is grounded on the mode in which the estate has been administered, it is not to be disregarded: Conroy v. Stokes, [1952] 4 D.L.R. 124, 1952 CanLII 227 (BCCA); Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 202. In circumstances where animosity hampers the proper administration of the estate, a finding of wrongdoing is not necessary in order to remove the executor: Dunsdon at para. 202; Weisstock v. Weisstock, 2019 BCSC 517 at para. 44.        While actual dishonesty, lack of proper capacity to execute his or her duties, or lack of reasonable fidelity are all bases for removing a trustee, even the lesser basis of a trustee’s inability to act impartially may suffice to justify their removal: Parker at para. 39. Further, where an administrator acts in a manner that frustrates the investigation and identification of estate assets that endangers estate property, in an attempt to benefit some beneficiaries at the expense of others, the administrator must be removed: Pangalia Estate, 2021 BCSC 1070 at para. 40.

An executor should remain neutral in administering the wishes of the testator. By involving oneself in a will variation proceeding, an executor offends that principle of neutrality by pursuing a personal interest which conflicts with the impartial role as executor. In Yeh Estate (Re), 2016 BCSC 1550, Justice Williams expressed the conflict as follows:

[17] The main consideration in whether to exercise that discretion is the welfare of the beneficiaries: Thomasson Estate (Re), 2011 BCSC 481, at para. 22. Even a “perceived” conflict of interest between an executor’s personal interests and her duty to act in the interests of the beneficiaries of the will can be sufficient to warrant her removal: Ching Estate (Re), 2016 BCSC 1111, at para. 22.

[18] The respondent’s essential position here is that the will should not be enforced as it reads on its face—that is, that the deceased’s interest in the Property (as it was prior to the transfers) should not pass to the petitioners.

[19] That puts the respondent in a fundamental conflict of interest. Her position in this dispute (certainly as regards the Property) is squarely at odds with her role as executor to administer the will.

Vancouver Estate Lawyer – Removing an Executor/Trustee

Removing an Executor

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estates limitation disputes including the removal of executors.

Re Wood Estate 2025 BCSC 2039 was a successful application by two of three siblings to remove the third sibling for various reason including:

)Taking 2 years to obtain a grant of probate in 2019 after the death of the last parent in 2017.

)  failing to file tax returns

) failing to pay outstanding taxes;

) a final tax clearance certificate must be applied for and obtained from the Canada Revenue Agency (the “CRA”);

  • )after the clearance certificate is received, there can be a final distribution of any remaining monies to the Estate beneficiaries) writing several abusive curse letters to the beneficiaries who were seeking transparency and asking that the estate be finalized

examples of the letters of response from the executor to the beneficiaries are:

To Sandra on November 24, 2017: “You are sick and need immediate mental help. Hope your kids are well with anxiety and a son who can’t even get a job. Tell your husband F[***] YOU”.

  1. b)To both on October 27, 2020, saying: “ … I simple [sic] do not trust either of you ….”
  2. c)On November 5, 2020, Edward wrote an email suggesting that Sandra and Dianne were implicated in “perjury, fraud, and elder abuse.”
  3. d)To Dianne, on July 12, 2021 (subject line: “YOU are a CLUELESS piece of s[***]”): “You piece of scum. F[***] you. You have destroyed many lives, not mine. Do Not Ever contact me  F[***] YOU”.

[26]         There is no dispute as to jurisdiction. In addition to having inherent jurisdiction, the court has the authority to remove a trustee under s. 30 of the Trustee Act and a personal representative under ss. 158 and 159 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

[27]         Section 30 of the Trustee Act reads:

Removal of trustees on application

30  A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of the trustee or receiver, at any time on application to the court by any trust beneficiary who is not under legal disability, with the consent and approval of a majority in interest and number of the trust beneficiaries who are also not under legal disability.

[28]         The most pertinent portions of s. 158 of WESA read:

Application to remove or pass over personal representative

158   (2) A person having an interest in an estate may apply to the court to remove … a person otherwise entitled to be … a personal representative.

(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove … a person otherwise entitled to be … a personal representative if the court considers that the personal representative … should not continue in office …, including, without limitation, if the personal representative …

…

(f) is

(i)         unable to make the decisions necessary to discharge the office of personal representative,

(ii)        not responsive, or

(iii)       otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative,

to an extent that the conduct of the personal representative hampers the efficient administration of the estate[.]

[29]         Although the parties have cited a variety of different cases identifying the governing principles, there is no real dispute as to those principles themselves. The dispute between the parties here is as to how those principles apply in circumstances of this case.

[30]         I adopt and rely upon the helpful summary set out by Justice MacNaughton (then of this Court) in Chesko v. Chesko Estate, 2024 BCSC 394 at paras. 53-58:

[53]            The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

[54]            A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

[55]            Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.

[56]            To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

[57]            Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.

[58]            The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84]      What circumstances justify the removal of a trustee? In Letterstedt …, 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.

Vancouver Estate Lawyer – Removal of an Executor 2025

Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes including dealing with the removal of executors who have acted improperly.

Mahal v Mahal 2024 BCSC 1934 provided an excellent review of the law relating to the removal of an executor.

Courts may remove an executor-trustee under the following three authorities:

1. Section 158 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA];
2. Sections 30 and 31 of the Trustee Act, R.S.B.C 1996, c. 464; and
3. The inherent jurisdiction of the court.

[24] While an executor or personal representative is someone who carries out the terms of a will; a trustee is a person who holds and caretakes assets for the beneficiaries, including for trusts that may arise in a will.

[25] The primary duty of an executor is to preserve the estate assets, pay the debts, and distribute the balance to the beneficiaries under the will or in accordance with any order varying the will: Rawji Estate (Re), 2023 BCSC 1652 at para. 32 [Rawji Estate].

[26] The two positions are, for practical purposes, often overlapping. Although they are distinct and there are separate provisions in the WESA or the Trustee Act that apply to each, in the context of applications to remove a person from acting in either of these two capacities, the tests for removal of an executor and of a trustee are substantially the same. The WESA and the Trustee Act do not vary the bases on which the court has inherent jurisdiction to remove or replace an executor or trustee: Chesko v. Chesko Estate, 2024 BCSC 394 at para. 51 [Chesko]. In essence, the court has the authority to remove and to replace a trustee, both by virtue of the Trustee Act and by virtue of its inherent jurisdiction, whenever such removal and replacement is necessary to the proper administration of the trust: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (B.C.S.C.) at para. 18 [Mardesic].

[27] Sections 143(4) and 158 of the WESA clarify that an application to remove a person under both the capacities of personal representative and trustee must be made under both the WESA and the Trustee Act.

[28] Section 142(2) of the WESA lists duties of a personal representative as including administering and distributing the estate, accounting to beneficiaries and performing any other duties imposed on the representative by the will or law.

[29] The Trustee Act applies to matters relating to removal or substitution of that person as a trustee (see the WESA at s. 143). The court may give procedural directions regarding the administration of an estate pursuant to Rule 25-14(8) of the Supreme Court Civil Rules.

[30] A beneficiary may seek an accounting: see s. 99 of the Trustee Act; s. 142(2)(b) of WESA.

[31] An application may be made under s. 158(3) of the WESA to remove a personal representative. Section 159 requires, where the administration of the estate is outstanding, for the court to appoint a replacement personal representative.

[32] The parties also referred to the inherent jurisdiction of the court to remove a trustee. The respondent argues this inherent jurisdiction should be used sparingly.

[33] In cases considering the removal of an executor or trustee, courts must consider the need to protect the interests of the beneficiaries, whether leaving an executor or trustee in place is harmful to the estate, and the need to respect the testamentary wishes of the deceased: Fitzgerald v. Hill, 2022 BCSC 968 at para. 5 [Fitzgerald]. Consideration will be given to the best interests of the beneficiaries generally—and whether removal would be in their best collective interests: Nieweler Estate (Re), 2019 BCSC 401 at para. 31.

[34] The court must also consider whether the executor is capable of acting impartially with respect to the estate and the beneficiaries. Whether the trustee’s acts or omissions endangered the administration of the trust is also relevant: Carpino v. Carpino, 2022 BCSC 2237 at para. 51 [Carpino]. Not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy v. Stokes, [1952] 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A) at 126–127 [Conroy].

[35] The Court of Appeal for British Columbia set out the test for removal of an executor and trustee in Conroy. The main consideration is the collective welfare of the beneficiaries. As laid out in para. 11 of Dirnberger Estate, 2016 BCSC 439 [Dirnberger Estate], citing Conroy, there are several different categories of conduct which may lead a court to conclude that an executor or trustee should be removed:

1. endangerment of trust property;
2. want of honesty;
3. want of proper capacity to execute the duties of the office; and
4. want of reasonable fidelity.

[36] The test to remove a trustee is as set out in Conroy, ss. 158–159 of the WESA and ss. 30–31 of the Trustee Act: see Chesko at paras. 51–60. A minority beneficiary can get an executor or trustee removed if the test is met.

[37] The focus of the analysis must be the welfare of the beneficiaries, and could include evidence of necessity, for example that the executor’s acts or omissions endanger the assets of the estate.

[38] If the executor is unable to perform their duties due to incapacity, they may be removed. Where a significant amount of time has passed, an executor may be found to be unable to perform their duties if it is a non-complex estate and there are no reasonable grounds for the delay: Dirnberger Estate. In Dirnberger Estate, the estate had not yet been distributed for four years after the deceased died. The court found that the executor lacked necessary capacity as they had shown an inability to perform their duties as executor and were therefore removed.

[39] A level of discord, friction or hostility between the trustee and one or more of the beneficiaries is usually not sufficient, of itself, to justify the removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84. For example, in Fitzgerald, despite almost all the beneficiaries seeking to have the executor and trustee removed and a finding that the executor and trustee should have performed his duties in a more cooperative and open manner, Justice Coval did not order removal. He found no endangerment to the estate assets and that no preferential treatment or hostility interfered with the proper administration of the estate.

[40] Nonetheless, an executor’s hostility towards a beneficiary may be relevant if the hostility could interfere with the proper administration of the trust, and could be found to constitute a lack of reasonable fidelity: Dirnberger Estate at paras. 14 and 37. In that case, the want of reasonable fidelity consisted of unaccountable hostility, distain and mocking behavior towards a beneficiary, which made the current executor and trustee no longer suitable to serve in those capacities: Dirnberger Estate at paras. 32–37.

[41] Significant evidence of animus toward a beneficiary can support a finding that an executor is unable, unwilling, or reasonably unlikely to put the estate’s best interests first: Rawji Estate at para. 45. In that case, the executor had filed a notice of civil claim alleging various torts and seeking damages of over twenty million dollars against one of the beneficiaries of the estate. Although Justice Gibb-Carsley made no findings of the merits of the alleged torts, he found that the size and subject matter of the allegations against the beneficiary demonstrated hostility toward the beneficiary such that the executor would be unable to approach the executor role in an impartial manner: Rawji Estate at paras. 45–52.

[42] Where there is an actual conflict of interest, the assets of the estate may well be endangered or impaired and in such circumstances, removal of the administrator is necessary to safeguard the integrity of the estate: see Pangalia Estate, 2021 BCSC 1070 at para. 22. Conflict of interest on the part of the executor, either where the executor’s personal interest conflicts with the interests of the beneficiaries, or other beneficiaries if the executor is also a beneficiary of the estate, may be found to endanger the estate if the executor puts their own interests above the beneficiaries.

[43] In Rawji Estate, the executor was disqualified in part because he was in an actual or perceived conflict of interest between his personal capacity and his role as executor: at paras. 53–62. The conflict of interest was twofold. First, the executor had attempted to vary the will in both his personal capacity and his capacity as executor of the estate. Second, the executor was alleged to be indebted to the estate and there was at least some evidence that this was the case.

[44] A conflict of interest may also show a want of fidelity.

[45] Given the respect for a will-maker’s choice of executor, removing an executor or trustee must occur for good reason, where such intervention is “clearly necessary”: Mardesic; Chesko at para. 57.

Vancouver Estate Lawyer – Removal or Passing Over an Executor

Trevor Todd and Jackson Todd have over 60 years experience in estate litigation including the removal or passing over of an executor.

In Re Virdi Estate 2025 BCSC 680 an executor who had a claim against the same estate was passed over due to his conflict of interest and replaced by another person.

The executor’s claim of just  less than $300,000 pursuant to a promissory note would be made against the estate which he was executor and thus placed the executor in a conflict of interest requiring his passing over and substituting of another executor.

                The Law

[32]         The court has the authority to remove or pass over an executor and trustee and appoint a substitute personal representative pursuant to ss. 158 and 159 of WESA, s. 31 of the Trustee Act, R.S.B.C. 1996 c. 464, and its inherent jurisdiction: Burke v. Burke, 2019 BCSC 383 at para. 31, citing Mardesic v. Vukovich Estate (1988), 30 B.C.L.R. (2d) 170 (S.C.), 1988 CanLII 3125; Thomasson Estate (Re), 2011 BCSC 481 at para. 19.

[33]         The portions of s. 158, relevant to this hearing are:

s. 158(1) In this section, “pass over” means to grant probate or administration to a person who has less priority than another person to become a personal representative. …

(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove or pass over a person otherwise entitled to be or to become a personal representative if the court considers that the personal representative or person entitled to become the personal representative should not continue in office or be granted probate or administration, including, without limitation, if the personal representative or person entitled to become the personal representative, as the case may be, …

(f) is

(i) unable to make the decisions necessary to discharge the office of personal representative,

to an extent that the conduct of the personal representative hampers the efficient administration of the estate, or …

(4) An order of the court removing a personal representative does not remove that person as a trustee. …

[34]         Section 159 of WESA states that the court must appoint a substitute personal representative where the Court has discharged or removed an executor, unless certain exceptions apply. The court may also concurrently appoint the substitute person as a trustee under the Trustee Act in place of the trustee being discharged or removed.

[35]         Section 31 of the Trustee Act states:

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.

[36]         In Parker v Thompson (Trustee), 2014 BCSC 1916, at para. 37–38, Chief Justice Hinkson adopted the following summary of guiding principles from Haines v. Haines, 2012 ONSC 1816 at para. 10, pertaining to the removal of an estate trustee:

(1) the court will not lightly interfere with the testator’s choice of estate trustee;

(2) clear evidence of necessity is required;

(3) the court’s main consideration is the welfare of the beneficiaries; and

(4) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

[37]         As summarized in Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 202:

[202] 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 CanLII 227 (BC CA), [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), 1973 CanLII 681 (ON CA), 36 D.L.R. (3d) 658 (Ont. C.A.); Wilson v. Heathcote, 2009 BCSC 554.

[38]         An executor and trustee may be removed or passed over when there is an actual or perceived conflict between their duties as executor and trustee, and their personal interests: Re Ching Estate, 2016 BCSC 1111 at paras. 21–22; Thomasson Estate (Re), 2011 BCSC 481 at para. 23. However, not every actual or perceived conflict of interest necessarily leads to disqualification. Each case turns on its own facts: Burke at para. 43; Hoggan v. Silvey, 2021 BCSC 971 at para. 16, rev’d on other grounds 2022 BCCA 176.

[39]         The fact that an executor asserts that they are a creditor of the estate will not automatically disqualify them from acting as executor; it will only do so where the actual or potential conflict of interest rises to the level of a “disqualifying conflict of interest”: Oates v. Baker Estate, 1993 CanLII 1921 (BC SC), [1993] B.C.J. No. 1293; Bringeland Estate (Re), 2024 BCSC 1546 at paras. 61–64.

[40]         In Bringeland Estate (Re), at para. 72, Justice Stephens set out the following non-exhaustive list of factors the Court should consider in determining whether an executor’s claim on the estate as a creditor is a disqualifying conflict of interest:

(a) has the executor been reasonably transparent about the existence of their claim?;

(b) whether the claim has been quantified by the executor, and the size of their asserted claim if it has been quantified (Brown Estate at para. 22)?;

(c) if not quantified, is there a reasonable explanation for the executor not doing so?;

(d) the passage of time, and the existence of any delay (Kara Estate (Re), 2022 BCSC 923 at para. 24)?;

(e) whether the other beneficiaries oppose the executor continuing despite the executor’s claim?;

(f) whether the executor’s pre-death loan claim creates a legitimate and reasonably held distrust on the part of a beneficiary in the executor’s impartiality?;

(g) whether the asserted pre-death loan endangers the administration of the estate into the future?; and

(h) whether the executor’s conduct with respect to the asserted pre-death loan hampers the efficient administration of the estate (Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 158(3)(f) [WESA])?

Vancouver Estate Lawyer – Revocation of Estate Grants

Trevor Todd and Jackson Todd have over sixty years combined experience at handling estate disputes, including the revocation of an estate  grant.

Re Barretto Estate 2025 BCSC 239 revoked a grant of administration on the basis of misrepresentation that should have prevented the grant from issuing in the first place.

The application is brought pursuant to Rules 25-5(5), 25-14(1)(c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] and this Court’s inherent jurisdiction.

As this Court recently summarized in Narsaiya Estate (Re), 2023 BCSC 1350 at paras. 30-32:

a) Rule 25-5(5) provides that, on application, the Court may order that an estate grant be revoked;
b) Rule 25-14(1)(c) provides that, where there has been an application for estate grant, a person may bring an application under Part 8 of the Rules for an order revoking an estate grant; and
c) Rule 25-1(1)(b) defines “estate grant” as including a grant of administration, whether the grant is made for general, special or limited purposes.

This Court’s jurisdiction to revoke a grant of administration is broad, although it is to be exercised sparingly. As summarized by our Court of Appeal in Desbiens v. Smith, 2010 BCCA 394 at para. 62:

Courts have jurisdiction to revoke estate grants where evidence discloses that the grant ought not to have issued. There are numerous grounds on which probate can be revoked: e.g., where subsequent wills have been discovered; where it has been found that the will is otherwise invalid; where it has been determined that the testator is not, in fact, dead; where it is shown that the executor is under a legal disability (minority or mental infirmity); and where probate has been obtained by fraud. In short, where it is shown that a condition precedent to the grant of probate was not fulfilled, the court has jurisdiction to revoke the grant […]

Section 159(1) of the WESA provides:

If the court discharges or removes a personal representative, the court
a) must appoint another person who consents to act as the substitute personal representative, unless
i. the administration of the estate is complete, or
ii. the court does not consider a new appointment necessary, and
b) may, if the personal representative has resigned or is removed as a trustee, concurrently appoint the person referred to in paragraph (a) as trustee under the Trustee Act in place of the trustee being discharged or removed.
Section 159(1)(a) of the WESA sets out that in the usual course, when a grant of administration is revoked, the Court must issue a grant of administration to another individual. However, the Court has discretion not to appoint another person as a substitute administrator if the administration of the estate is complete or if the Court deems it unnecessary to appoint a substitute.

Vancouver Estate Lawyer – Court Orders $150,000 Punitive Damages Against Administrator

Leibenzeder Estate v MacIntyre 2025 BCSC 189 is noteworthy as the court ordered punitive damages against the administrator in the amount of $150,000, in addition to other substantial damages.

The court that the administrators misconduct as a fiduciary was malicious, oppressive, and high-handed, and her failure to participate in this application is yet a further demonstration of her contempt for court processes.

Trevor Todd and Jackson Todd have practiced estate litigation for over 60 combined years including dealing with difficult executors and administrators.

Applicable Legal Test  For Punitive Damages

Punitive damages are not compensatory. They are intended to punish a defendant for “‘malicious, oppressive and high-handed’” misconduct that represents a “marked departure from ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36.
As Justice Goepel explained in Ojanen v. Acumen Law Corporation, 2021 BCCA 189 at para. 77, citing Whiten at para. 69, the three objectives of punitive damages are retribution, deterrence, and denunciation. Punitive damages are only to be awarded in exceptional circumstances when compensatory damages would not adequately achieve these objectives.
In Whiten at para. 94, the Court set out several principles to be considered in making an award of punitive damages. In summary, these principles include that:

a) punitive damages are the exception rather than the rule, and are imposed only if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour;

b) punitive damages are generally awarded only where the misconduct would otherwise be unpunished or where other penalties are unlikely to achieve the objectives of retribution, deterrence, and denunciation;

c) punitive damages are awarded only if compensatory damages (which to some extent are punitive in nature) are insufficient to accomplish these objectives, and the amount awarded is no greater than necessary to rationally accomplish their purpose;

d) the purpose of punitive damages is not to compensate the plaintiff, but to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened;

e) when awarded, punitive damages should be assessed in an amount reasonably proportionate to the harm caused, the degree of the misconduct, the plaintiff’s relative vulnerability, and any advantage or profit gained by the defendant, having regard to any other fines or penalties suffered by the defendant for the misconduct in question; and

f) moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.

In Whiten at para. 113, the Court set out the factors that determine the level of a defendant’s blameworthiness. These factors include:

a) whether the misconduct was planned and deliberate;
b) the defendant’s intent and motive;
c) whether the defendant persisted in the outrageous conduct over a lengthy period of time;
d) whether the defendant concealed or attempted to cover up their misconduct;
e) the defendant’s awareness that what they were doing was wrong;
f) whether the defendant profited from their misconduct; and
g) whether the interest violated by the misconduct was known to be deeply personal to the plaintiff.

The quantum of punitive damages should be proportionate to the degree of misconduct in light of its nature, the harm it caused, the plaintiff’s vulnerability, and any advantage it wrongfully gained the defendant.

Awards of significant amounts have been made against defendants who abuse the court’s process or breach fiduciary duties. The more reprehensible the conduct, the higher the award: Mulligan v. Stephenson, 2016 BCSC 1941 at para. 140.

The Estate has provided me with several cases in which punitive damage awards of $100,000 or more have been made against a fiduciary. For example, in Walling v. Walling, 2012 ONSC 6580, an award of $100,000 was made against an executor who mismanaged and squandered the estate in breach of his fiduciary duty to his nephews, the beneficiaries. The defendant also breached numerous court orders requiring him to comply with the terms of the will and to pay costs.

In Zhang v. Zhang, 2022 BCSC 2156, an award of $100,000 was made against a fiduciary who secretly traded shares held in trust for a beneficiary and failed to account to the beneficiary for the proceeds of sale.

In 6071376 Canada Inc. v. 3966305 Canada Inc., 2019 ONSC 3947, an award of $200,000 was made against a defendant who induced a group of investors to invest in the purchase of a property, then secretly sold it without their knowledge. The court found that the defendant lied to the plaintiffs and covered up the sale for more than six years.

BC Estate Litigation – Executor Removed

Trevor Todd and Jackson Todd have practiced estate  law for over sixty years including the removal of executor/trustees .

It is difficult to remove an executor/trustee but it was so ordered in Re Harvey Estate 2024 BCSC 1706 for several reasons, including conflict of interest.

The following excerpt of law on the subject is very clear and informative:

Section 158 of Wills Estate and Succession Act, S.B.C. 2009, c. 13 [WESA] allows the court to remove a personal representative of an estate if the court considers that they should not continue in the office.

Subsection 158(3) of WESA provides a series of non‑exhaustive situations where the court may remove an executor. Those include where an executor is unable to make decisions necessary to discharge the office, is unresponsive, or is unwilling or unreasonably refuses to carry out their duties to such an extent that it impedes the efficient administration of the estate.

Sections 30 and 31 of the Trustee Act, S.B.C. 1996, c. 464 [Trustee Act] also allow the court to remove an executor as a trustee on application by, or with the support of, the majority of beneficiaries, and replace them with one or more new trustee(s).

The power to remove or replace an executor is also found in the inherent jurisdiction of the court. The test for removal under either WESA or the Trustee Act is effectively the same, and neither legislation varies the basis on which the court has inherent jurisdiction to remove or replace an executor or trustee: Carpenter Estate (Re), 2024 BCSC 745 at para. 48.

It is well settled that the primary duty of an executor is to preserve the estate assets, pay the debts of the estate, and distribute the balance to the beneficiaries under the will or in accordance with any order varying the will. Executors should be indifferent as to how the estate is to be divided: Rawji Estate (Re), 2023 BCSC 1652 at para. 32.

On applications to remove an executor from office, the court should be guided by the following principles:

  1. a)there should be clear evidence of necessity to remove an executor, and removal should only occur where there is no alternative;
  2. b)the court’s main consideration is the welfare of the beneficiaries;
  3. c)the executor’s conduct must be endangering the administration of the estate; and
  4. d)the court must ask whether the estate is unlikely to be administered in accordance with the executor’s fiduciary duties, with due regard for the beneficiaries, if the executor is left in office.

Parker v. Thompson (Trustee), 2014 BCSC 1916 at paras. 35-40; Rawji Estate (Re) at paras. 34-35.        Each case turns heavily on its own facts and context, with due respect for a will-maker’s choice of executor. Not every act of misconduct will result in an executor being removed. The question is whether the acts or omissions endanger the trust property or show a want of honesty, a want of property capacity to execute their duties, or a want of reasonable fidelity: In The Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 22; Carpenter Estate (Re) at para. 57; Dirnberger Estate, 2016 BCSC 439 at para. 11.

Section 99 of the Trustee Act requires that an executor appointed under a will must obtain an order for passing their accounts within two years from the grant of probate or administration, or from the date of their appointment, unless the accounts are approved with the written consent of all beneficiaries.         Section 99(6) of the Trustee Act further provides that an executor may be removed from their appointment, and replaced, where they have failed to pass accounts in accordance with this section, or if their accounts are incomplete or inaccurate.

The public policy consideration underlying these obligations are self‑evident. Executors have effective control over assets, sometimes very substantial assets, which they may have no beneficial interest in. The relevant legislation requires appropriate accountability. Not necessarily a standard perfection as addressed above, but accountability accompanied by appropriate consequences for failing to fulfil their obligations where necessary.

Removal for Conflicts and Failures to Act

The court may remove executors where they have acted in a manner that endangers the estate, acted dishonestly, acted without proper care, or acted without reasonable fidelity. That includes failing to disclose estate information or treating a beneficiary with hostility. It also includes acting in a manner that frustrates the investigation or identification of estate assets with a view to undermining a beneficiary’s interest. In the latter situation, removal must occur: Pangalia Estate, 2021 BCSC 1070 at para. 40; Rawji Estate (Re) at para. 38.

A conflict of interest amounts to a want of fidelity and can warrant removal on the basis that the welfare of the beneficiaries may be endangered. A trustee must be removed in situations where there is an actual or perceived conflict of interest that is to the detriment of the beneficiaries: De Bonis (Re), 2023 BCSC 713 at para. 70; Kara Estate (Re), 2022 BCSC 923 at para. 8.

Additionally, an unreasonable delay in administering the estate or a failure to act to distribute the estate may also be grounds for removing an executor from office: Dirnberger Estate at paras. 14–16

 

Contested Estates In BC – Removing an Executor

Trevor Todd and Jackson Todd have over sixty years experience in handling contested estate disputes including  removing an executor or trustee

An executor may be removed and replaced under ss. 158–159 of the WESA, and a trustee may be removed and replaced under ss. 30–31 of the Trustee Act. The tests for removal of an executor and of a trustee are substantially the same. The WESA and the Trustee Act do not vary the bases on which the Court has inherent jurisdiction to remove or replace an executor or trustee.

The basis on which the judicial discretion to remove is to be exercised is well-established and has been cited in many cases.

The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.
To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.
The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84] What circumstances justify the removal of a trustee? In Letterstedt …, 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

In Fitzgerald v. Hill, 2022 BCSC 968, despite almost all the beneficiaries seeking to have the executor and trustee removed and a finding that the executor and trustee should have performed his duties in a more cooperative and open manner, Justice Coval did not order removal. He found no endangerment to the estate assets and that no preferential treatment or hostility interfered with the proper administration of the estate.

There is a  high threshold that must be met for a removal order and  each case turns on its own particular facts and the context of the estate in issue.

BC Contested Estates – The Criteria For Removing an Executor

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates, including the removal of executors.

The law relating to the removal of an executor was summarized in Nand Estate (Re), 2022 BCSC 1718 and followed in Re Walker Estate 2024 BCSC 250.

The Court has power, under both s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 as well as its own inherent jurisdiction, to make an order removing a trustee: Dirnberger Estate, 2016 BCSC 439 [Dirnberger Estate] at para. 9, citing Morelli v. Morelli, 2014 BCSC 106 at para. 29.

Section 158(3) of the WESA allows the Court to remove a person entitled under a will from being a personal representative in the circumstances enumerated in that section. Subsection 158(3)(f)(iii) allows for removal where the personal representative is:

(iii) otherwise… unable to or unreasonably refuses to carry out the duties of a personal representative,
to an extent that the conduct of the personal representative hampers the efficient administration of the estate

Notwithstanding that jurisdiction, courts are very hesitant to interfere with the discretion of the will-maker to remove an Executor. To do so, good reason must be shown for believing that the interests of a person entitled under the will are in danger: Re: Estate of Andre Jacques Blitz, Deceased, 2000 BCSC 1596 at para. 20.

Indeed, in deciding whether to remove an estate’s trustee, the Court’s main guide should be “the welfare of the beneficiaries”: Crawford v. Jardine, 1997 O.J. No. 5041 (Ont. Ct. (Gen. Div.)) at para. 18.

In Dirnberger Estate, at para. 11, the Court set out the four categories of conduct on an Executor’s part that will warrant removal as follows:
a) endangerment of the trust property;
b) want of honesty;
c) want of proper capacity to execute the duties; and
d) want of feasible fidelity.

In Parker v. Thompson (Trustee) 2014 BCSC 1916, at paras. 35 to 43, the Court added “actual dishonesty” and “lesser basis of a trustee’s ability to act impartially” as bases for removing a trustee.

It also reiterated the removal of a trustee “should not be lightly entertained”, and citing Radford v. Radford Estate, 2008 CarswellOnt 5297, 43 E.T.R. (3d) 74, set out a number of other considerations to apply when considering an application for the removal of a trustee. They are:

• removal must be the only course to follow;
• non-removal must likely prevent the proper execution of the trust; and
• removal is not intended to punish for past conduct.

The existence of friction between a trustee and one or more of the beneficiaries is usually not sufficient, of itself, to justify the removal of the trustee: Dirnberger Estate at para. 10, citing Erlichman v. Erlichman, 2000 BCSC 173 at para. 8.