Dealing with the complexities of estate administration aren’t easy, especially when conflicts or uncertainties arise between co-executors. At Onyx Law Group, our experienced estate litigation attorneys have prepared a series of posts on the issue of removing an executor appointed in a BC will. In previous posts, we’ve looked into cases involving the removal of one co-executor due to conflict, inaction, or delay, leaving the remaining co-executor to manage the estate as the sole executor.
In this article, we aim to answer some of the most frequently asked questions as it relates to co-executors in British Columbia:
A co-executor of a will, often referred to as a joint executor, is a person chosen alongside one or more other people to jointly manage an estate in accordance with the terms of a will. The will maker names these co-executors – entrusting them with the duty of overseeing and dispersing the assets of the estate upon their passing.
As co-executors, they are expected to collaborate and make decisions together while navigating the estate administration process. Their duties typically include, but are not limited to, locating and valuing assets, paying off outstanding debts and taxes, managing the estate’s finances, and distributing the remaining assets to the beneficiaries as specified in the will.
The appointment of co-executors can provide a system of checks and balances, ensuring that no single individual has complete control over the estate administration. This arrangement can help minimize the potential for mismanagement or fraud and may also offer additional support and expertise, particularly when the estate is complex or involves multiple jurisdictions.
Co-executors generally are expected to work together and make decisions collaboratively when administering an estate. While they may perform certain tasks independently, important decisions should be made with the agreement of all co-executors. The law emphasizes the importance of consensus among co-executors to ensure a fair and equitable administration of the estate.
However, there may be instances where a will explicitly grants co-executors the authority to act independently. In such cases, the co-executors can carry out their duties separately, as permitted by the provisions of the will. It’s essential to carefully review the will to determine the extent of the co-executors’ authority and whether they can act independently or are required to collaborate in their decision-making process.
It is always advisable for co-executors to communicate openly and work cooperatively to avoid disputes that may lead to delays in administering the estate or legal complications. In cases where disagreements arise, seeking the assistance of an experienced estate litigation attorney can help resolve issues and ensure a smooth estate administration process.
An executor does not have the authority to appoint a co-executor on their own. The testator (person who creates the will) designate the executors to manage and distribute their estate according to the will’s provisions after their death.
In some situations, an executor may find it challenging to administer the estate alone due to the estate’s complexity or the executor’s lack of expertise in certain areas. In such cases, the executor can seek the assistance of professionals like accountants, attorneys, or financial advisors to help with specific tasks. However, these professionals will not have the same legal authority as a co-executor.
If an executor feels that they require the help of a co-executor to administer the estate effectively, they may petition the court to appoint an additional executor. The court will then assess the situation and determine if appointing a co-executor is in the best interest of the estate and its beneficiaries.
In Weisstock v. Weisstock, 2019 BCSC 517, two brothers were named as co-executors in their late mother’s last will and testament, but due to acrimonious disputes that arose, neither of the brothers believed that the other was fit to serve in that capacity, and both applied to the court to remove the other as executor. The Honourable Mr. Justice Milman concluded that the appropriate order was for both co-executors to be passed over in favour of a professional trustee.
Maria Weisstock (“Maria”) passed away on December 29, 2016 at the age of 91. She was predeceased by her husband, Willy, who died in 2012. Maria and Willy had four children. During their lifetimes, Willy and Maria created a successful real estate investment and rental business operated through a corporation called Witmar Holdings Ltd. (“WHL”). The value of the business was disputed, but was estimated to be in the range of $24 million to $55 million.Willy and Maria’s wills stipulated as follows:
As a result of disagreements between Tony and Albert, the administration of Maria’s estate became deadlocked and no substantive steps were taken to administer the estate or to obtain a grant of probate in the period of more than two years that elapsed since Maria’s death. Each co-executor applied to remove the other as executor, contending that the other was in breach of trust and in an untenable conflict of interest.
The principles that guide the court’s discretion in deciding whether to remove an executor or estate trustee are as follows:
(1) the court will not lightly interfere with the will-maker’s choice of executor(s) or estate trustee(s);
(2) clear evidence of necessity is required;
(3) the court’s main consideration is the welfare of the beneficiaries; and
(4) the executor or estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the estate.
It has repeatedly been held that a conflict of interest may disqualify an executor from acting in that capacity. Such a conflict may arise if the executor has or may have a claim against the estate or if the estate has or may have a claim against the executor. In addition, it has been held that an impasse between co-executors that interferes with the proper administration of the estate may suffice to justify passing over one or more of them, even without a showing of wrongdoing. In all cases, the fundamental guide must be the welfare of the beneficiaries.
It was apparent to Justice Milman that it was necessary to pass over at least one of the two co-executors in order for any progress to occur, and in fact, there were good reasons to pass over both of them due to untenable conflict of interest:
Having concluded that both Tony and Albert should be passed over, the next question to be decided was whether to appoint an Administrator Pending Legal Proceeding (“APL”) pending the outcome of the litigation or a permanent replacement. In Weisstock, Justice Milman preferred the latter option, not being persuaded that Albert and Tony would ever be capable of cooperating effectively with one another as co-executors, even after the litigation was resolved. Even if either Tony or Albert were to resume the duties of executor alone following the conclusion of the litigation, there would still be a significant risk that the orderly administration of the estate would founder yet again over new disagreements, miscommunications or misunderstandings. Instead, it was in the best interests of the beneficiaries for both Tony and Albert to be passed over in favour of a permanent and neutral replacement. By order of the court a recently retired lawyer was appointed as sole executor of Maria’s estate.
In this article, we have explored various scenarios and addressed key questions related to British Columbia laws, including the nature of co-executors, their ability to act independently, and the appointment of a co-executor by an existing executor.
In conclusion, conflicts of interest or dissension among co-executors that hinder the proper administration of an estate may necessitate the removal of one or more executors. Such situations include when an executor has a claim against the estate or vice versa. In these cases, the court has the authority to appoint a temporary or permanent neutral replacement, such as a professional trustee. Ultimately, the court’s primary concern is always the welfare of the beneficiaries, and any decisions made aim to safeguard their best interests.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
(604) 900-2538
We were made to feel valued and heard. Integrity, competence and a passion for justice definitely describes Onyx. They are also caring, compassionate and have a good sense of humour.
Thanks to Onyx’s straightforward approach, this litigation was resolved with the best outcome for myself and my children. Although this ordeal was emotionally trying, we can get on with our lives, without added worry and stress.
I chose the right law firm and I know our future is on the proper course because of Onyx. I wouldn’t hesitate to tell anyone who needs good legal representation to take my words to heart.
650 West Georgia Street
Suite 1215 - The Scotia Tower
Vancouver, BC V6B 4N9
T (604) 900 2538
F (604) 900 2539
26 Fourth Street
Suite 100
New Westminster, BC V3L 5M4
T (604) 900 2538
F (604) 900 2539
1631 Dickson Avenue
Suite 1100
Kelowna, BC V1Y 0B5
T (604) 900-2538
F (604) 900-2539
The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.