Executor Removed For Borrowing against an estate asset that went into foreclosure.

Stevens v Whittacker 2012 BCSC 1188 involves an application for the removal of the defendant executor and trustee of the parties mother’s last will and testament.

The executor had heavily mortgaged the estate properties which then went into foreclosure.

The court found that the defendant was in a conflict of interest and set aside his appointment as executor and trustee of the property, appointing the plaintiff in his place.

The court relied upon the following authority:

s. 31 of the Trustee Act, R.S.B.C. 1996, c. 464 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.

There is no question that an executor owes a duty to the beneficiaries and when there is an allegation of personal conflict of interest, he must step aside:

in Re Thomasson Estate, 2011 BCSC 481, citing Re Becker (1986), 57 O.R. (2d) 495.

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