Re Koglin Estate 2021 BCSC 2525 is one of many court decisions where an application to remove an executor/trustee was refused by the courts. This is not to say that such application cannot succeed, but the evidence must be clear and strong for the courts to interfere with the choice of the will maker as to his or her chosen executor.
The law is reasonably well settled with the leading case in British Columbia, being Conroy v Stokes (1952) 4 DLR 124 BCCA that stated that in order to succeed in such an application, the evidence must show that:
1. The executor acted in a manner that endangered the asset, or
2. As executor, he or she acted dishonestly, without proper care, or without reasonable fidelity;
In Parker v Thompson ( Trustee) 2014 BCSC 1916 . The deceased established in inter vivos trust in which is corporate solicitor was trustee. His chief for children from his first marriage sought to remove the trustee on the basis that he acted in a way that gave precedence to the interests of the second wife and son of his second marriage.
The court quoted an Ontario judgment that stated the principle that “removal of an estate trustee should only occur on the clearest evidence that there is no other course to follow”.
The court stated that the standard of care and diligence required of a trustee is that of a man of ordinary prudence in managing his own affairs and accepted the following principles applicable to the court’s discretion on an application to remove a trustee:
• The court will not lightly interfere with the testator’s choice of estate trustee;
• clear evidence of necessity is required
• the court’s main consideration is the welfare of the beneficiaries;
• the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.
The existence of friction between the trustee in one or more beneficiaries is not usually sufficient of itself to justify the removal of the trustee Erlichman v Erlichman 2000 BCSC 173 at para.8, however, the court will remove a trustee, where the welfare of the beneficiaries requires it.
In Dimberger Estate 2016 BCSC 439 the court did remove the trustee for failure to distribute the estate after four years after the grant of probate, and took into consideration the trustees ongoing hostility towards his sister the co-beneficiary