How to Remove and Replace an Executor of an Estate in British Columbia

An executor is a person who is appointed by a will to administer the estate of the deceased person. The executor has many duties, such as:

1. Locating and securing the assets of the estate
2. Paying the debts and taxes of the estate
3. Distributing the remaining assets to the beneficiaries according to the will
4. Preparing and filing the accounts of the estate

The executor has a fiduciary duty to act honestly, diligently, and in good faith for the benefit of the estate and the beneficiaries. The executor must also follow the law and the terms of the will.

An executor is only one possible role for a person authorized to administer an estate. These terms are as follows:

1. An executor is someone named in a will to carry out the instructions of the testator (the person who made the will).
2. An administrator is appointed by the court to manage the estate of a person who died without a valid will (intestate) or whose executor is unable or unwilling to act. The administrator’s main duties are similar to those of an executor except that the distribution of the assets is governed by the rules of intestacy in cases where there is no will.
3. A personal representative is a general term that can refer to either an executor or an administrator.
4. A trustee is someone who is appointed or designated to hold and manage the assets of a trust for the benefit of the beneficiaries. This is typically the executor or administrator of an estate.

Regardless of which of these roles a person filled, they may be removed, but the test may be slightly different for each.

A beneficiary may wish to remove and replace an executor if they are unhappy with the executor’s performance or conduct. For example, a beneficiary may have concerns that the executor is:

1. Delaying or mishandling the administration of the estate
2. Not communicating or cooperating with the beneficiaries
3. Not acting in the best interests of the estate or the beneficiaries
4. Abusing their power or misappropriating the assets of the estate

However, removing and replacing an executor is not an easy or simple process. Animosity between the beneficiary and the executor is not sufficient to justify the removal. The primary test is the effect on the welfare and interests of the beneficiaries collectively. The decision in Conroy v. Stokes, [1952] 4 DLR 124 is often cited for its statement that the court should look at whether the executor has endangered the trust property, or shown a want of honesty or of proper capacity to execute the duties, or want of reasonable fidelity.

In the decision of Dirnberger Estate, 2016 BCSC 439 , the court set out four categories of an executor’s conduct that can constitute grounds for removal:

1. endangerment of the trust property;
2. want of honesty;
3. want of proper capacity to execute the duties; and
4. want of reasonable fidelity.

The beneficiary must apply to the court and prove that there are valid grounds for the removal and replacement. The court has the discretion to decide whether to grant or deny the application, based on the facts and circumstances of each case. The court will consider factors such as:

1. The testator’s wishes and the terms of the will.
2. The nature and extent of the executor’s misconduct or incompetence.
3. The impact of the executor’s actions or inactions on the estate and the beneficiaries.
4. The availability and suitability of an alternative executor.
5. The stage and progress of the administration of the estate.
6. The potential costs and delays of the removal and replacement.

The Wills, Estates and Succession Act (WESA) governs the administration of estates in BC. The WESA sets out the duties and powers of executors, as well as the rights and obligations of beneficiaries and creditors. The WESA also provides rules for the interpretation of wills, the distribution of intestate estates, the variation of wills by the court, and the resolution of estate disputes.

Section 158 of the WESA allows the court to remove and replace executors. It states the court, by order, may remove or pass over a person otherwise entitled to be or to become a personal representative if the court considers that the personal representative or person entitled to become the personal representative should not continue in office or be granted probate or administration. Some considerations listed in section 158 include whether the executor:

1. is incapable of managing the personal representative’s or person’s own affairs;
2. has been convicted of an offence involving dishonesty;
3. is unable to make the decisions necessary to discharge the office of personal representative;
4. is not responsive; or
5. is unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative.

In the decision Gawdun v. Lord, 2020 BCSC 266, the court reviewed the law for passing over an executor pursuant to section 158 of the WESA and stated that the factors to consider are:

1. Recognizing that the testator’s choice of estate trustee should not be lightly entertained;
2. Requiring clear evidence of necessity;
3. Focussing on the main consideration of the welfare of the beneficiaries; and
4. Requiring proof that the executor’s acts or omissions are of such a nature as to endanger the administration of the estate

The Trustee Act Trustee Act, contains provisions that give the British Columbia Supreme Court the power to remove and replace trustees and executors. These include:

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.

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.

97(1) If an application is made to the court by or on behalf of the person creating or intending to create a trust, or by or on behalf of a trustee or beneficiary, the court may, in its discretion, appoint a judicial trustee to be a trustee of that trust, either jointly with any other person or as sole trustee, and, if sufficient cause is shown, in place of all existing trustees.

Removing and replacing an executor is not a simple or easy process. The beneficiary who applies to the court must have strong and clear evidence to support their claim that the executor has breached their duty and that the removal and replacement is necessary and beneficial for the estate and the beneficiaries. The court will not remove and replace an executor based on minor or trivial complaints, or on personal or emotional conflicts between the executor and the beneficiary. The court will respect the testator’s wishes and the terms of the will, unless there are compelling reasons to override them. The court will also consider the practical and financial implications of the removal and replacement, such as the costs, delays, and disruptions to the administration of the estate.

If you are a beneficiary who is unhappy with the executor’s performance or conduct, you should consult a lawyer who can advise you on your rights and options, and help you resolve the issue in the most efficient and effective way possible. Removing and replacing an executor is a serious and complex matter that requires legal expertise and guidance.