Co-executor of a Will: Common Problems & Solutions

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:

1. What is a co-executor of a Will?
2. Can co-executors act independently
3. Can an executor appoint a co-executor?
4. Can one or both co-executors be removed or “passed over”?

What is a co-executor of a Will?

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.

Can co-executors act independently?

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.

Both co-executors removed or “passed over”

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.

Deadlock in Weisstock leading to both co-executors applying to remove the other

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:

• Willy’s last will and testament named one of his children, Tony, as sole executor, and stipulated that the residual interest in his estate was to be held in trust for Maria during her lifetime, to be used for Maria’s benefit. When he made his will, Willy also settled a trust known as the “Willy and Maria Weisstock Trust” (the “Trust”). After Maria’s death, the residue of the Trust was to go to their four children in equal measure unless one of them commenced or became involved in legal proceedings against the Trust, the trustee or WHL, in which case the trustee was empowered to remove that person as a beneficiary. When Maria died, there had been no grant of probate with respect to Willy’s estate.
• Maria’s last will and testament left all of her property to Willy, or if he predeceased her (as he did), to their four children in equal measure. The principal assets in Maria’s estate were her 25% interest in WHL and a 1/76 interest in a multi-unit rental building known as the “Palisades” (the other 75/76 interest in that building is held by WHL). Her last will and testament named two of her sons, Tony and Albert, as co-executors.

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. 

Principles that guide the court when removing an executor 

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.

Removing an executor may not be enough; it may be necessary to remove both

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:

• Reasons for removing Albert as executor: Maria had executed a power of attorney in favour of Albert in 2004 (the “POA”), which Albert began using to manage Maria’s affairs starting in 2013. Tony had suspicions that Albert used the POA without authority. After Maria’s death, Tony repeatedly demanded that Albert formally account for his use of the POA, including any joint accounts he and Maria may have held together. Albert was dilatory and selective in his responses to the legitimate questions that Tony raised. Entries in the general ledger that he prepared did not appear to align in at least some cases with the bank statements that he produced. There remained several issues in Albert’s use of the POA requiring investigation on behalf of the estate, and Albert was in no position to direct the estate in the conduct of any such investigation. Moreover, the manner in which Albert discharged his duties as attorney did not bode well for the prospect of his carrying out his duties as executor of Maria’s estate to the requisite standard.
• Reasons for removing Tony as executor: Tony too was in an untenable conflict of interest flowing from his position as sole executor of his father’s estate, sole trustee of the Trust, and a director of WHL. The executor of Maria’s estate would need to investigate and reach a conclusion on, among other things, the value of Maria’s shares in WHL, the status of the shareholder loans owed by WHL, the advisability of the proposed WHL refinancing from the perspective of Maria’s estate, the payments that were made (or should have been made) by the Trust and WHL, the value of the assets in the Trust and the degree to which the Trust can or should be paying some or all of the debts of Maria’s estate. Tony had conflicting interests in that regard which precluded him from being a neutral investigator and decision-maker on behalf of Maria’s estate with respect to those and potentially other related questions.

Who is appointed if both co-executors are removed or “passed over”?

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.

Final Thoughts

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.