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:
- a)there should be clear evidence of necessity to remove an executor, and removal should only occur where there is no alternative;
- b)the court’s main consideration is the welfare of the beneficiaries;
- c)the executor’s conduct must be endangering the administration of the estate; and
- 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
