Burke v . Burke 2019 BCSC involved an application brought under sections 130 and 132 of WESA, along with section 31 of the Trustee Act and the inherent jurisdiction of the court to remove an executor and trustee and substitute another, and indicated how difficult it can be to succeed without strong evidence.
The introduction of WESA legislation on March 31, 2014 added the provisions of sections 131 and sections 132 as a procedure to follow when making such applications. There is a great deal of case law on this topic, and I do not think WESA overrules any of them in their general principles.
As the case law indicates, as well as the Burke case, the courts will not likely interfere with the testator’s choice of the estate trustee and will require strong evidence of necessity, such that the trustees acts or omissions endanger the administration of the trust.
In Burke the petitioner showed a strong prima facie case of executor conflict of interest yet the court refused to remove the executor and substitute another.
131. If a person dies, leaving a will, and the executor named in the will renounces executorship, or is unable or unwilling to apply for a grant of probate, or if no executors named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:
a) a beneficiary who applies having the consent of the beneficiaries representing the majority in interest of the estate, including the applicant;
b) a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate; and
c) any other person the court considers appropriate to appoint, including, without limitation, and subject to the public Guardian and trustee’s consent, the public Guardian and trustee.
s 132. Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate. If, because of special circumstances, the court considers it appropriate to do so, the appointment of an administrator under subsection 1 may be conditional or unconditional, and it made for general, special, or limited purposes.
Section 31 of the Trustee Act states as follows:
31. If it is expedient to appoint a new trustee and it is found in expedient, difficult or impractical 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 the making of the order, and either in substitution for, or in addition to, any existing trustees.
In Parker V. Thompson 2014 BCSC 1916, Chief Justice Hinkson summarized the test to be applied on an application such as this at paragraph 37:
“37. I accept the principles pertaining to the removal of an estate trustee set out in Haines v. Haines 2012 ONSC 1816 at paragraph 10, as equally applicable to the removal of the trustee.”
In Johnson v. Lanka 2010 ONSC 100 0. R. 258 at paragraph 15, the court summarize the principles that should guide the court’s discretion in deciding whether to remove estate trustees:
1) the court will not likely 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 trustees acts or omissions must be of such a nature as to endanger the administration of the trust.