The role of an executor or trustee in estate cases is one of significant responsibility and trust. Executors and trustees are tasked with managing and distributing the assets of an estate in accordance with the deceased's will or the terms of a trust. However, there are instances where an executor or trustee may fail to fulfill their duties, act improperly, or become unable to serve. In such cases, beneficiaries or interested parties may seek to remove them. This blog outlines the steps to remove an executor or trustee in Vancouver estate cases.
Understanding the Role of Executors and Trustees
Executors
Executors are appointed in a will to administer the estate of the deceased. The primary duty of an executor is to:
- Preserve estate assets;
- Pay debts; and
- Distribute the balance to the beneficiaries under the will or in accordance with any order varying the will.
Trustees
Trustees manage the assets held in a trust according to the terms set out in the trust document. Their responsibilities include:
- Managing trust assets;
- Adhering to their fiduciary duties; and
- Distributing trust income and assets as specified.
Legislative Basis for the Removal of an Executor and Trustee
Section 158 of the Wills, Estates and Succession Act, SBC 2009, c 13, provides that the court may remove the personal representative of an estate if the court considers that the personal representative should not continue in office. The court, as part of its inherent jurisdiction, also has authority to remove an executor.
Section 159 of the Wills, Estates and Succession Act provides that if an executor is removed, the court must appoint another person, who consents to act, as the substitute personal representative of the estate.
Sections 30 and 31 of the Trustee Act, RSBC 1996, c 464 also give the court the power to remove and replace a trustee.
Grounds for Removal
Before proceeding with an application to the court for the removal of an executor or trustee, it is essential to understand the grounds upon which such removal can be based. A court has jurisdiction to remove an executor or trustee when there is evidence the executor has acted in a manner that endangers the estate or, as executor, has acted dishonestly, without proper care, or without reasonable fidelity. Potential grounds include:
- Animus towards a beneficiary: Significant animus toward a beneficiary can support a finding that an executor is unable, unwilling or reasonably unlikely to put the estate's best interests first (Rawji Estate (Re), 2023 BCSC 1652).
- Incapacity: Being incapable of managing the personal representative's or person's own affairs (Section 158 of WESA).
- Conflict of Interest: Where circumstances are such that the executor should not continue in that office because of a conflict between the personal interest of the executor and the executor's duties (Jury v. Rogodzinski, 2021 BCSC 2441).
- Misconduct: Lack of neutrality, failure to disclose estate information or other misconduct including treating one or more beneficiaries with hostility (Kyle Estate v. Kyle, 2016 BCSC 855).
Steps to Remove an Executor or Trustee
1. Review the Will or Trust Document
Begin by carefully reviewing the will or trust document. Understanding these provisions is crucial before taking any further steps.
2. Gather Evidence
To support your case for removal, gather evidence of the executor or trustee's conduct that could support removal, such as misconduct, incapacity, or conflict of interest. This may include financial records, correspondence, and witness statements.
3. Attempt to Resolve Informally
Before resorting to legal action, attempt to resolve the issue informally. This can involve discussing your concerns with the executor or trustee and requesting that they voluntarily step down. In some cases, mediation can help facilitate an agreement.
4. Consult an Estate Litigation Lawyer
Given the complexities involved, consulting with an experienced estate litigation lawyer in Vancouver is essential. A lawyer can provide guidance on the strength of your case, the legal procedures involved, and the potential outcomes.
5. File an application with the Court
If informal resolution fails, the next step is to file an application with the Supreme Court of British Columbia. The application should outline the grounds for removal and include supporting evidence. Your lawyer will assist in preparing and filing this document.
6. Attend the Court Hearing
The court will hold a hearing to consider your application. During the hearing, both parties will have the opportunity to present their arguments and evidence. The judge will assess whether there are sufficient grounds for removal.
7. Court's Decision
The court may decide to remove the executor or trustee if it finds that there is sufficient evidence of misconduct, incapacity, or other valid grounds. The court will also appoint a new executor or trustee, either from the names suggested by the beneficiaries or another suitable candidate.
Conclusion
Removing an executor or trustee in Vancouver estate cases is a serious and complex process that requires careful consideration and substantial evidence. Understanding the grounds for removal and following the appropriate legal steps are crucial for a successful outcome. If you are considering removing an executor or trustee, consulting with an experienced estate litigation lawyer is essential to navigate the process effectively and protect your interests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.