The BC Supreme Court was recently tasked with deciding an application made to remove an executor from his role on the basis that his actions were having a negative impact on the estate, its assets, and its beneficiaries. The court ultimately ordered the executor’s removal, and provided a review of the relevant principles to consider in an application of this kind.

Under s. 158 of the Wills, Estates and Succession Act, a person having an interest in an estate may apply to the court to remove a person otherwise entitled to be or to become a personal representative. There are numerous grounds to do so as set out in the legislation, but this list is not exhaustive.

Removal may be necessary where the personal representative:

(a) refuses to accept the office of or to act as personal representative without renouncing the office,

(b) is incapable of managing his or her own affairs,

(c) purports to resign from the office of personal representative,

(d) being a corporation, is dissolved or is in liquidation other than a voluntary dissolution or liquidation for the purpose of amalgamation or reorganization,

(e) has been convicted of an offence involving dishonesty,

(e.1) is an undischarged bankrupt,

(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; or

(g) a person granted power over financial affairs under the Patients Property Act [which presumably means a person for whom power to manage financial affairs has been granted to a committee].

Whether or not one or more of these circumstances apply, removal is not automatic. Although resignation prior to acting may be effected by signing a one page renunciation, in cases where a person has taken any steps to act as executor (ie. they have intermeddled in the estate), then a court application will be required to formally remove them from the role of personal representative, in addition to removing them from the role of trustee.

Although it is sometimes clear that removal is appropriate, the relevant parties may not always agree. When this occurs (such as in the recent case of Rawji Estate (Re), 2023 BCSC 1652), litigation will be called for, where all parties can make their case in front of a judge.

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This article is intended for information purposes only and should not be taken as the provision of legal advice. Grace C. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or grace@clevelanddoan.com.