It is difficult to remove and substitute an alternate executor/trustee as a will-maker has the right to choose their executor and trustee.
That choice is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so. In Parker v. Thompson (Trustee), 2014 BCSC 1916, Hinkson, C.J.S.C. stated:
In Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of the trustee:
In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:
(a) the court will not lightly interfere with the testator’s choice of estate trustee;
(b) clear evidence of necessity is required;
(c) the court’s main consideration is the welfare of the beneficiaries; and
(d) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.
See also Burke v. Burke, 2019 BCSC 383 at para. 29.
In addition, “not every actual or perceived conflict should lead to disqualification of an executor”. Each case turns on its own facts: Burke at para. 43.
s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 [Trustee Act] . Section 30 states:
Removal of trustees on application
S.30 Trustee Act provides:
A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of him or her, at any time on application to the court by any trust who is not under legal disability, with the consent and approval or a majority in interest and number of the trust beneficiaries who are also not under legal disability.
s. 31 of the Trustee Act provides the authority needed to replace the executor. Section 31 provides:
Power of court to appoint new trustees
31 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.
s. 158 and 159 of WESA also provides for the removal or passing over of a personal representative.
In Dahle Estate (Re), 2021 BCSC 718 at para. 20 there are four categories of conduct by an executor that will warrant their removal:
(1) endangerment of trust property;
(2) want of honesty;
(3) want of proper capacity to execute the duties; and
(4) want of reasonable fidelity.