It is not uncommon for executors to tire of their responsibilities including responding to the demands of beneficiaries and decide to resign from their duties as executors. On the other hand, beneficiaries may tire of the executor’s delays in administering and distributing an estate or more seriously, take the view that the executor is acting negligently or even worse.
Removing an executor from their role as the personal representative of the deceased, either voluntarily or involuntarily, is not a straightforward or simple question. What procedures are used depends on a number of factors including a) whether administration of the estate has already been granted or not, and b) if such a grant of administration has been made, whether the executor is still acting ‘qua executor’ or has begun acting as a trustee administering the trust(s) created by the will.
In the latter instance, in BC, the ‘executor’ role is notionally completed when the personal representative completes her/his duties of collecting all the assets and settling all the estate’s debts. The personal representative then becomes a trustee who holds the remaining assets and distributes the assets in accordance with the will or any court order varying the will. (However, in the ‘real world’, there is typically no clear and definitive point at which an executor converts into a trustee.)
Executor Renunciation
If a person appointed in a will as an executor renounces executorship, before a grant of administration of the estate has been made by the Court, by filing a notice of renunciation made in accordance with Supreme Court Civil Rule 25-1(4), the person’s rights of executorship ceases as if the person had not been appointed. An executor will also have been deemed to have renounced his or her position as executor if he or she has been served with a citation under Supreme Court Civil Rule 25-11 either before or after a grant of administration has been made by the Court and the executor fails to take certain steps mandated by the Rules to either give notice of the grant of administration or if a grant has not been made, take certain steps indicating that the executor has either already sought such a grant or will be taking steps to seek the grant.
Right to Apply for Discharge
Section 157 of the Wills, Estates and Succession Act (WESA) provides that an executor may at any time apply to the Court to be discharged from her/his office subject to certain requirements being met regarding the accounts that must be kept by an executor. Assuming those requirements are met, the order discharging the executor may operate to discharge the executor from any liability for anything done by that person in the capacity of a trustee.
Involuntary Removal
The BC Supreme Court has an inherent power to remove an executor and appoint a new administrator of an estate. The power is also however expressly conferred upon the Court by sections 158 and 159 of WESA. And where the executor is acting as a trustee, the Court can also make an order under sections 30 and 31 of the Trustee Act to remove a trustee and appoint a new trustee.
It has been said that the Court will be hesitant to remove an executor or trustee because such a decision interferes with the will-maker’s right to nominate his or her own executor. However, the Court will remove an executor if the circumstances demand it.
Grounds for Removal of an Executor
In the case of Powers v. Powers Estate et al., 1988 CanLII 5527 (NL SC), the Court referred to Lord Blackburn’s quotation of Story’s Equity Jurisprudence stating that:
“In cases of positive misconduct courts of equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties or want of reasonable fidelity.”
The interests of the beneficiaries are the Court’s primary concern and any executor deemed to be acting in a manner that benefits him/her personally or to the detriment of the beneficiaries is liable to be removed.
The Court will assess the evidence in such case to determine whether the executor’s acts or inaction has:
- Endangered the trust property/estate,
- Demonstrated dishonesty; or
- Demonstrated incapacity to handle affairs of the estate;
- Demonstrated a lack of reasonable good-faith.
Depending on the extent and nature of the executor’s transgressions, the Court may find that the executor deserves another chance to correct mistakes if they are considered ‘honest’ as opposed to ones based on a breach of duty, self-interest, dishonesty or incapacity.
Insufficient Grounds for Removal of an Executor
- Friction between the beneficiaries and the executor does not provide sufficient ground for the executor’s removal as long as he performs his duties objectively.
- Failure to pass accounts within two years.
- Conflicts of interest may not necessarily provide sufficient grounds for removal of an executor such as in instances where an executor is also a named beneficiary of the estate. An example of such would be a sibling or surviving spouse named as the executor. In such a case the courts would have to consider whether the executor will act objectively in their role.
If you are involved in a dispute with your executor or are you an executor who wants to be relieved of your duties you should contact an experienced lawyer for guidance. To schedule a consultation with one of our estate lawyers, call McLarty Wolf today at 604-688-9542 or send us an email through our online contact form.
