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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.”

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