Trevor Todd and Jackson Todd have over 65 combined years of experience in estate litigation including the removal of an executor.

Re Kandola estate 2026 BCSC 630 gave an exhaustive review of the various criteria that may result in the removal of an executor.

Although the cited cases are helpful in setting out the high threshold that must be met for a removal of an executor order, each case turns on its own particular facts and the context of the estate in issue.

The basis for the exercise of judicial discretion to remove an executor or trustee is not controversial. Justice MacNaughton (then of this Court) summarized the relevant legal principles in Chesko v Chesko estate 2024 BCSC 394:

1. a)The leading authority continues to be Conroy  v Stokes 1952 4 DLR 124(at para. 53);
2. b)The main consideration is the collective welfare of the beneficiaries (at para. 53, citing Conroyat 126);
3. c)A court will not lightly interfere with a testator’s choice of trustee (at para. 54, citing Nieweler Estate (Re), 2019 BCSC 401 at para. 27);
4. d)Not every actual or perceived conflict should lead to disqualification of a trustee or an executor (at para. 54, citing Conroyat 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43);
5. e)Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee (at para. 54, citing Miles v. Vince, 2014 BCCA 289 at para. 84);
6. f)Perfection is not expected of an executor or trustee (at para. 55, citing In The Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 22);
7. g)The question is whether the trustee’s acts or omissions endangered the administration of the trust (at para. 55, citing Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burkeat para. 29);
8. h)To remove an executor or trustee for misconduct, the evidence must show that they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity (at para. 56, citing Conroyat 127; see also Nieweler Estate (Re) at para. 33);
9. i)Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason (at para. 57, citing Mardesic v. Vukovich Estate(1988), 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (B.C.S.C.) at paras. 18–19; Burke at paras. 29, 31); and
10. k) Grounds for removing an executor may include a failure to disclose estate information: Kyle Estate v. Kyle, 2016 BCSC 855 at para. 88; varied on other grounds 2017 BCCA 329.
11. L) The duty of an executor is to settle the affairs of the deceased and to distribute the estate in accordance with the terms of the will in a timely manner: Dirnberger Estate, 2016 BCSC 439 at paras. 13 and 31. A failure to act can amount to grounds for removal: Dirnberger Estateat para. 16. In Levi-Bendel v. McKeen, 2011 BCSC 247, the executor’s refusal or reluctance to proceed with the administration of the estate was found to amount to a want of reasonable fidelity and a failure to carry out her duties: paras. 21 and 23.
12. M) Where an estate trustee has been given a broad discretion to postpone converting or selling an estate property, courts should not interfere with such a discretion and “so long as he has a bona fideintention to perform his obligation to convert and distribute, the exercise of his discretion should not be interfered with by this court”: Hriczu v. Mackey Estate, 2011 BCSC 454 at para. 17. This discretion must be exercised honestly, reasonably, intelligently, and in good faith. It cannot be exercised in such a way as to give the executor a personal benefit or put him in a conflict of interest, and it must not be exercised in such a way as to defeat the purpose of the testator: Hriczuat para. 16.
13. N) Beneficiaries of an estate have the right to ask the personal representative for accurate information about the estate. A personal representative has an ongoing duty to maintain records and account for their dealings with estate property at common law and under s. 142 of WESAand s. 99 of the Trustee Act.
14. O)The court’s paramount concern in determining whether to remove a personal representative is the welfare of the beneficiaries: KyleEstate at para. 88. In Kyle Estate, the executor comingled trust assets with his personal assets. Justice Burnyeat determined that the executor had to be removed on multiple grounds, any one of which would have warranted his removal: Kyle Estate at para. 90. I conclude that the executor’s  decision to commingle his own funds with estate funds warrants his removal as executor: Kyle Estate at para. 90.

 

43. P) A conflict of interest may disqualify an executor from acting in that capacity: Weisstock v. Weisstock, 2019 BCSC 517 at para. 43. Such a conflict may arise if the estate might have a claim against the executor. In Veitch v. Veitch Estate, 2007 BCSC 952, the executor’s personal interest was found to be in direct conflict with the interests of the estate and he was removed: at para. 35

 

The primary duty of an executor is to preserve the assets of the estate: Burke v. Burke, 2019 BCSC 383 at para. 46

A trustee may be removed if they deal with estate assets without the knowledge or approval of the beneficiaries in a manner that endangers those assets and this results in a personal benefit to the trustee; such actions demonstrate a want of fidelity and a conflict of interest and duty: Kyle Estate at para. 87 (varied on other grounds, 2017 BCCA 329) citing Hall v. Hall (1983), 45 B.C.L.R. 154 (B.C.S.C) at p. 157. A trustee is expected to exercise the standard of care and diligence that a person of ordinary prudence would in managing their own affairs: In the Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 31.

 

An executor may be removed where:

1. a)Their duties conflict with their personal interests, estate assets are endangered by the executor’s conduct, and the executor benefits at the expense of the estate: Hall v. Hall, 1983 CanLII 396 (BC SC); Veitch Estate.
2. b)They fail to disclose estate information to beneficiaries despite repeated requests: Kyle Estate, varied on other grounds, 2017 BCCA 329.
3. c)They do not comply with their duties to settle the affairs of the estate and distribute to beneficiaries, or where their actions delay final distribution of the estate and were not in the best interests of the beneficiaries: McKay; Nieweler Estate (Re).