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.

Removal of an Executor 2023

Re De Bonis 2023 BCSC 713 removed a brother and sister who were jointly appointed co-executors of their parent’s estate, by reason of their inability to work together and their toxic relationship and appointed a corporate trustee in their place.

Removal of Executor

There are three sources of authority that the Court can draw on to remove an executor or trustee and appoint a replacement:

-the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA],
-the Trustee Act, R.S.B.C. 1996, c. 464,
and the Court’s inherent authority: Morelli v. Morelli, 2014 BCSC 106 at para. 29.

Section 158 of WESA, govern an application to remove or pass over a personal representation and replace them. The relevant portions of s. 158 include:

(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,
(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, or …

Section 159 of WESA provides the Court with the statutory authority to appoint an executor in circumstances where the Court has discharged or removed an executor.

Sections 30 and 31 of the Trustee Act, provides the statutory authority for the Court to remove an individual as trustee of an estate and appoint a replacement. In the application of both WESA and the Trustee Act, the same considerations apply, as provided below.

The Court’s discretion to remove an executor should be guided by the principles listed in Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37. The will-maker has the right to choose their executor, and as such their decision is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so. The executor’s acts or omissions must be of such a nature as to endanger the administration of the estate.

The Court’s main consideration is the welfare of the beneficiaries: Parker at para. 37; Burke v. Burke, 2019 BCSC 383 at para. 29. It is not the interests of a particular beneficiary that are to be considered, but rather the benefit of the beneficiaries collectively: Conroy v. Stokes, [1952] 4 D.L.R. 124 at p. 128, 1952 CanLII 227 (B.C.C.A.).

The analysis is contextual and each case will turn on its facts: Burke at para. 43.
In Conroy, the Court of Appeal described the four categories of misconduct by an executor that can warrant their removal:
a) Endangerment of trust property;
b) Want of honesty;
c) Want of proper capacity to execute duties; and
d) Want of reasonable fidelity.
The existence of friction between the executor and one or more beneficiaries is generally, in and of itself, not sufficient to warrant the removal of the executor: Letterstedt v. Broers, (1984), 9 App. Cas. 371 at 389 (South Africa P.C.). However, animosity between those parties, or co-executors, can be relevant to whether it hampers the proper administration of the estate: Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 202; Levi-Bandel v. McKeen, 2011 BCSC 247 at paras. 21–25. In such circumstances, a finding of wrongdoing is not necessary: Dunsdon at para. 202; Weisstock v. Weisstock, 2019 BCSC 517 at para 44.
In Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74, 2008 CanLII 45548 (O.N.S.C.), Justice Quinn comments that removal is not intended to punish past conduct:
Removal not intended to punish past misconduct
[106] “The authorities are, I believe, consistent in placing the emphasis on the future administration of the estate, and the risks to which it will be exposed if the trustee remains in office. The question is whether the trust 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. The sanction of removal is intended not to punish trustees for past misconduct but rather to protect the assets of the trust and the interests of the beneficiaries”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 28.
[107] But, “past misconduct that is likely to continue will often be sufficient to justify removal …”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 29.
[Emphasis added.]

Conflict of Interest

An executor’s conflict of interest may warrant removal. In Hall v. Hall (1983), 45 B.C.L.R. 154, 1983 CanLII 396 (S.C.), Justice Proudfoot held that conflict of interest and a conflict of duty demonstrate want of fidelity: see also Pangalia Estate, 2021 BCSC 1070 at para. 22. Further, in Morelli at para. 30, Justice Harvey held that the “welfare of the beneficiaries of an estate may be endangered if there is a conflict of interest”. However, not all perceived or actual conflicts of interest will give rise to the removal of an executor: Burke at para. 43.
In Ching Estate (Re), 2016 BCSC 1111, an executor was passed over due to perceived unequal treatment and conflict of interest, with Justice Affleck holding that the “perception of a disabling conflict of interest is overwhelming”: at para. 20. The Court held that a “perceived” conflict of interest may lead to removal:

[22] The authorities indicate that even a “perceived” conflict of interest between an executor’s personal interests and her obligation to administer the trusts in the will in the interests of the beneficiaries may cause this court to intervene to appoint a new executor or an administrator to avoid even the appearance of conflict.

BC Estate Lawyer-Removal of an Executor/Trustee 2023

Trevor Todd and Jackson Todd have over 60 years experience in handling contested estate matters including  dealing with difficult executors and having them removed when appropriate..

 

It is difficult to remove and substitute an alternate executor/trustee as a will-maker has the right to choose their executor and trustee.

That choice is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so. In Parker v. Thompson (Trustee), 2014 BCSC 1916, Hinkson, C.J.S.C. stated:

In Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of the trustee:

In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:

(a) the court will not lightly interfere with the testator’s choice of estate trustee;
(b) clear evidence of necessity is required;
(c) the court’s main consideration is the welfare of the beneficiaries; and
(d) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

See also Burke v. Burke, 2019 BCSC 383 at para. 29.

In addition, “not every actual or perceived conflict should lead to disqualification of an executor”. Each case turns on its own facts: Burke at para. 43.
s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 [Trustee Act] . Section 30 states:

Removal of trustees on application

S.30 Trustee Act provides:

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

s. 31 of the Trustee Act provides the authority needed to replace the executor. Section 31 provides:

Power of court to appoint new trustees

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.

s. 158 and 159 of WESA also provides for the removal or passing over of a personal representative.

In Dahle Estate (Re), 2021 BCSC 718 at para. 20 there are four categories of conduct by an executor that will warrant their removal:

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

Court Again Refuses to Remove an Executor

Court Again Refuses to Remove an Executor

Fitzgerald v Hill 2022 BCSC 968 is one of many examples where disgruntled beneficiaries with hostility towards the executor failed in court to replace or remove an executor / trustee.

The court listed off the many things that the executor had performed in carrying out his duties and saw no endangerment to the estate assets so refused to remove an executor.

THE LAW

To replace or remove an executor under ss. 158 and 159 of Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], and a trustee under s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464. Both may also be removed and replaced under the inherent jurisdiction of the court.

If the court removes a personal representative under WESA, it must appoint another person who consents to act as a substitute personal representative, unless the administration of the Estate is complete or the court considers it unnecessary.

The guiding principles are well-established for the exercise of judicial discretion to remove an executor and trustee. As stated by Butler J., as he then was, in Levi-Bandel v. McKeen, 2011 BCSC 247:

[19] The test for removal of an executrix or trustee is not contentious. The leading authority in British Columbia remains the decision in Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.). In Conroy, the Court of Appeal considered whether it was expedient to remove one trustee and appoint a replacement when some of the beneficiaries were dissatisfied with the way the trustee was handling the estate. The court confirmed at 126-127 that the main test for removal of a trustee is the welfare of the beneficiaries:

In Letterstedt v. Broers (1884), 9 App. Cas. 371, their Lordships of the Judicial Committee held that the main principle upon which the jurisdiction of Courts of Equity has been exercised to remove old trustees and substitute new ones in cases requiring such a remedy, is the welfare of the beneficiaries of the trust estate.

[20] In Letterstedt, the court noted that it is not every act of misconduct that should result in removal of a trustee, only acts or omissions which endanger the trust property or show “a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity.”

Out of respect for the will-maker’s choice of executor, the court should interfere only for good reason: Re Blitz Estate, 2000 BCSC 1596, at para. 20; Tomlinson Estate (Re), 2016 BCSC 1223, at para. 43. This test has been put even higher in some cases, for example in Veitch Estate, 2007 BCSC 952, at para. 19, citing Re Weil, [1961] O.R. 888 (ONCA):
It seems to me that such an interference with the discretion and choice of a person in preparing his last will and testament must be not only well justified but, as has been said before, must amount to a case of clear necessity.

The court’s discretion in deciding whether to remove a trustee should be guided by the following principles, set out in Parker v. Thompson (Trustee), 2014 BCSC 1916, at para. 37:

[37] I accept the principles pertaining to the removal of an estate trustee set out by Madam Justice Nolan in Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of the trustee:

In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:

(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.

To remove an executor on the basis of misconduct, the evidence must show they endangered the estate property, acted dishonestly and without proper care, without capacity to execute the duties, or without reasonable fidelity: Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.). 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.).

Mere friction between the trustee and one or more beneficiaries is usually insufficient to justify removal of the trustee. As stated in Miles v. Vince, 2014 BCCA 289:

[84] What circumstances justify the removal of a trustee? In Letterstedt v. Broers (1884), L.R. 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. 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 truste

es. 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.

The Hill Beneficiaries rely on Sheppe v. Harlingten, 2018 BCSC 1460, regarding dismissal of a trustee due to hostility to the beneficiaries. In that case, the trustee was the grantor’s former husband, and the disputing beneficiaries her children from a subsequent relationship. The trustee wished to sell their family home in which they lived, to use the proceeds in his real estate project. He listed it for sale and they filed a CPL. The trustee then sent them scathing, insulting correspondence (see para .16).

[27] Not every neglect of duty or mistake will result in removal of the trustee. The key question is whether there is or has been endangerment of trust property, whether through a lack of honesty, lack of capacity or lack of reasonable fidelity: Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.); Miles at para. 85.

[28] In Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37, Chief Justice Hinkson said at para. 37:

[37] I accept the principles pertaining to the removal of an estate trustee set out by Madam Justice Nolan in Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of a trustee:

In Johnson v. Lanka, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:

(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.
…
[39] I also cannot ignore the hostility that Mr. Harlingten expressed to the beneficiaries when they took what they considered to be necessary steps to protect their interests.
[40] Dissension between a trustee and beneficiaries is not necessarily a reason to remove the trustee: Conroy at p. 126. The questions is whether it would become difficult for the trustee to act with impartiality or whether the friction is of a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust: Radford v. Radford Estate (2008), 169 A.C.W.S. (3d) 688 (Ont. S. Ct. J) at paras. 112 and 113.

Executor Removed by All Beneficiaries

Executor Removed by All Beneficiaries

Re Kara Estate 2022 BCSC 923 ordered an executor removed, or passed over since probate had not been started, where all of the beneficiaries sought such an order.

There were allegations of executor delay and favourtism to one party.

The Law

Section 158 of the Wills, Successions and Estate Act, S.B.C. 2009, c.13, provides that:

158.

(2) A person having an interest in an estate may apply to the court to remove or pass over a person otherwise entitled to be or to become a personal representative.

(3) […] the court […] may remove or pass over a person 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 […] if the person entitled to become the personal representative […]:

(f)         is:

(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.

 

The Court of Appeal in Conroy v Stokes, [1952] 4 DLR 124 (BCCA), set out the types of conduct that could warrant removal of an executor, which include:

(a)  Endangerment of the trust property;

(b)  Want of honesty;

(c)   Want of proper capacity to execute the duties; and

(d)  Want of reasonable fidelity.

Butler J., as he then was, noted in Levi-Bandel v. McKeen, 2011 BCSC 247 at para. 21 that “it is not only an act of misconduct that can be grounds for removal of a trustee. A failure to act can amount to grounds for removal.” In Dirnberger Estate, 2016 BCSC 439, Kelleher J. confirmed that unreasonable delay and failure to act to distribute an estate may be grounds for the removal of an executor.

In Ching Estate (Re), 2016 BCSC 1111 at para. 22, Affleck J. noted:

The authorities indicate that even a “perceived” conflict of interest between an executor’s personal interests and her obligation to administer the trusts in the will in the interests of the beneficiaries may cause this court to intervene to appoint a new executor or an administrator to avoid even the appearance of conflict.

 

The bottom line was stated in Nieweler Estate (Re), 2019 BCSC 401

” The main guide in exercising the Court’s discretion to remove trustees is the welfare of the beneficiaries: Letterstedt at 387. It is not the interests of a particular beneficiary that are to be considered, but rather the benefit of the beneficiaries collectively: Conroy v. Stokes, at 128; Re Winter Estate, at para. 22.”