Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estates limitation disputes including the removal of executors

Re Wood Estate 2025 BCSC 2039 was a successful  application by two of three siblings to remove the third sibling for various reason including:

 

)Taking 2 years to obtain a grant of probate in 2019 after the death of the last parent in 20117

)  failing to file tax returns

) failing to pay outstanding taxes;

) a final tax clearance certificate must be applied for and obtained from the Canada Revenue Agency (the “CRA”);

• )after the clearance certificate is received, there can be a final distribution of any remaining monies to the Estate beneficiaries) writing several abusive curse letters to the beneficiaries who were seeking transparency and asking that the estate be finalized

examples of the letters of response from the executor  to the beneficiaries are:

 

To Sandra on November 24, 2017: “You are sick and need immediate mental help. Hope your kids are well with anxiety and a son who can’t even get a job. Tell your husband F[***] YOU”.

1. b)To both on October 27, 2020, saying: “ … I simple [sic] do not trust either of you ….”
2. c)On November 5, 2020, Edward wrote an email suggesting that Sandra and Dianne were implicated in “perjury, fraud, and elder abuse.”
3. d)To Dianne, on July 12, 2021 (subject line: “YOU are a CLUELESS piece of s[***]”): “You piece of scum. F[***] you. You have destroyed many lives, not mine. Do Not Ever contact me  F[***] YOU”.

 

 

 

[26]         There is no dispute as to jurisdiction. In addition to having inherent jurisdiction, the court has the authority to remove a trustee under s. 30 of the Trustee Act and a personal representative under ss. 158 and 159 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

[27]         Section 30 of the Trustee Act reads:

Removal of trustees on application

30  A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of the trustee or receiver, at any time on application to the court by any trust beneficiary who is not under legal disability, with the consent and approval of a majority in interest and number of the trust beneficiaries who are also not under legal disability.

[28]         The most pertinent portions of s. 158 of WESA read:

Application to remove or pass over personal representative

158   (2) A person having an interest in an estate may apply to the court to remove … a person otherwise entitled to be … a personal representative.

(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove … a person otherwise entitled to be … a personal representative if the court considers that the personal representative … should not continue in office …, including, without limitation, if the personal representative …

…

(f) is

(i)         unable to make the decisions necessary to discharge the office of personal representative,

(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[.]

[29]         Although the parties have cited a variety of different cases identifying the governing principles, there is no real dispute as to those principles themselves. The dispute between the parties here is as to how those principles apply in circumstances of this case.

[30]         I adopt and rely upon the helpful summary set out by Justice MacNaughton (then of this Court) in Chesko v. Chesko Estate, 2024 BCSC 394 at paras. 53-58:

[53]            The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

[54]            A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

[55]            Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.

[56]            To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

[57]            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 or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.

[58]            The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84]      What circumstances justify the removal of a trustee? In Letterstedt …, the court established guidelines justifying the removal of a trustee (at 385-389):

1. If the Court is satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
2. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.
3. In exercising the delicate jurisdiction of removing trustees, the Court’s main guide must be the welfare of the beneficiaries. It is not possible to lay down any more definite rule in a matter that is so “essentially dependent on details often of great nicety.” The Court must proceed to look carefully into the circumstances of the case.
4. Where a trustee is asked to resign, and if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign.
5. The lack of jurisprudence in respect of the removal of a trustee reflects that a trustee when asked to do so, will resign.
6. If, without any reasonable ground, the trustee refuses to do so the court might think it proper to remove him.
7. Friction or hostility between trustees and the beneficiary is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is not to be disregarded.