When someone writes a will, they can choose to appoint someone to serve as their executor. An executor is responsible for administering an estate and carrying out the instructions set out in the will after the will-maker passes away. If an executor fails to properly carry out their responsibilities, concerns are sure to arise concerning whether the executor should remain in control of the estate.
In some circumstances, an executor’s conduct can put estate assets or beneficiary interests at risk. Serious conflicts of interest, dishonesty, incapacity, or other forms of misconduct may make it necessary to ask the court to remove the executor. Beneficiaries and others with a legal interest in the estate may have options when they believe an executor is no longer suitable to serve.
Can the Executor of an Estate Be Removed?
It is possible to remove an executor of an estate when they are no longer able or suitable to administer the estate. Under section 158 of the Wills, Estates and Succession Act (WESA), a person with an interest in an estate can apply to the court to remove an executor or prevent them from taking on the role. The court may make an order when it considers that the executor should not continue in office.
Removing an executor may be possible under the following circumstances:
- Endangering estate assets: An executor’s actions or inaction put estate property at risk or otherwise interfere with its proper administration.
- Dishonesty: An executor acts dishonestly in dealing with estate assets, beneficiaries, or other matters connected to the estate.
- Lack of proper care or capacity: An executor is unable to manage the responsibilities of the role or fails to take the care reasonably required when administering the estate.
- Lack of reasonable fidelity: An executor fails to properly carry out their fiduciary responsibilities or acts in a way that is inconsistent with their duties to the estate and its beneficiaries.
- Refusing to act: An executor refuses or is unwilling to carry out their responsibilities, particularly where their refusal interferes with the proper administration of the estate.
- A serious conflict of interest: An executor’s personal interests conflict with their responsibilities to the estate, particularly where the conflict prevents them from acting properly and fairly.
- Other serious misconduct: An executor engages in conduct that significantly interferes with the proper administration of the estate or puts beneficiaries’ interests at risk.
Why Removing an Executor is Not Always Straightforward
Not every disagreement, mistake, or difficult relationship will justify removing an executor. Estate administration can become contentious, particularly when beneficiaries disagree with an executor’s decisions. A poor relationship between an executor and one beneficiary does not, by itself, mean that the executor should be removed. Similarly, simply suspecting that an executor is favouring one beneficiary over another will not necessarily meet the threshold for removal.
The court must consider whether there is a sufficient reason to interfere with the deceased’s choice of executor and whether removal is necessary for the proper administration of the estate. The executor’s actions or inaction must create a significant problem for the estate or the interests of the beneficiaries as a whole.
A minor or isolated mistake may also be treated differently from a pattern of serious misconduct. When an executor makes an error in good faith while attempting to act in the interests of the estate and its beneficiaries, removal may not be warranted. The circumstances surrounding the conduct, its impact on the estate, and whether the executor can continue to properly perform their duties will all be relevant.
If the court determines that an executor should be removed, section 159 of WESA generally requires the court to appoint another person who consents to act as the substitute personal representative. This allows the administration of the estate to continue without the removed executor.
How to Remove an Executor from a Will
Removing an executor requires an application to the Supreme Court of BC. There needs to be sufficient grounds for removal and evidence that supports those concerns. In general, this process involves:
Speaking with an Estate Litigation Lawyer
It’s crucial to know whether your circumstances meet the legal threshold for removal. A lawyer can assess the situation, identify relevant evidence, advise on the available options, and help determine whether negotiation, mediation, or a court application is appropriate. If court proceedings become necessary, a lawyer can also prepare the application and represent the applicant throughout the process.
Gathering Evidence About the Executor’s Conduct
Keep records of anything that supports the concerns about the executor’s ability or willingness to properly administer the estate. This could include messages or correspondence, financial records, photographs, videos, estate documents, or other evidence showing how the executor has handled their responsibilities. Keeping a record of attempts to address the concerns is also important.
Trying to Resolve the Issue Without Going to Court
Depending on the circumstances, it may be appropriate to raise the concerns with the executor and allow them to address the problem. In some cases, beneficiaries may ask the executor to voluntarily step down. Mediation may also provide a way to resolve disagreements without a court application. Even when these efforts are unsuccessful, documenting what was discussed and how the executor responded may help establish the history of the dispute.
Applying to the Supreme Court of BC
If the matter cannot be resolved, a person with an interest in the estate may apply to the court for an order removing or passing over the executor. The application must set out the reasons for seeking removal and provide evidence supporting the allegations. The court will consider the evidence and determine whether the executor should continue in the role.
Attending the Court Hearing
The parties will have an opportunity to present their evidence and arguments to the court. The judge will consider the circumstances of the estate, the executor’s conduct, and whether removal is necessary for the proper administration of the estate. If the executor is removed, the court will generally appoint another person who consents to act as the substitute personal representative.
Protect Your Interests in an Estate Dispute
Stephens & Holman can help beneficiaries and other people with an interest in an estate assess concerns about an executor and determine the appropriate course of action. Our estate litigation lawyers can review the circumstances, help gather and assess relevant evidence, and advise on whether negotiation, mediation, or a court application may be appropriate.
If you are concerned about the way an executor is administering an estate, it is important to seek legal advice before the situation becomes more difficult to resolve. Contact Stephens & Holman to discuss your circumstances and learn how we can help protect your interests in an estate dispute.