In British Columbia, removing an executor or trustee can be necessary when they fail to properly fulfill their duties. But what are the grounds for doing so? The case of Nieweler Estate (Re), 2019 BCSC 401 sheds light on the justified reasons for removal. Discover why the executor was removed in this real-life estate litigation matter and understand the process involved in removing executors or trustees in BC.
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There are several grounds for removing an executor or trustee, including under the Wills, Estates and Succession Act, the Trustee Act, or the inherent jurisdiction of the court. The following are the four main categories of conduct that may warrant removal of an executor or trustee:
Endangerment of the trust property – if the executor or trustee puts the assets of the estate or trust at risk, they may be removed.
Want of honesty – if the executor or trustee is found to be dishonest or engaging in fraudulent behavior, they may be removed.
Want of proper capacity to execute the duties – if the executor or trustee is unable to properly perform their duties due to incapacity, they may be removed.
Want of reasonable fidelity – if the executor or trustee breaches their duty of loyalty and breaches their trust, they may be removed.
The dispute in Nieweler Estate arose between three siblings (Ingrid, Edward and Stephan) who were named as co-executors in their father’s Will. The Will provided that the residue of the father’s estate was to be divided into equal shares for each of the three siblings. The Will did not contain a majority clause, which meant that the co-executors were obliged to act unanimously in the discharge of their duties and obligations. The three siblings started to disagree with respect to the handling of the estate shortly after their father died. Stephan and Edward applied to remove Ingrid as executor. After being served with the application, Ingrid applied to remove Stephan, arguing that during discussions about listing one of the estate properties for sale, Stephan had indicated that he would not agree to any sale unless certain conditions were met.
The allegations against Ingrid were much more extensive. Ingrid’s alleged misconduct included:
Note that the court considered the last allegation of misconduct on the application to remove Ingrid, even though the bank accounts were privately held family companies which were not part of the estate; the court viewed it as relevant to show Ingrid’s attitude to her siblings and her ability to carry out the duties as a trustee.
In Nieweler Estate, Mr. Justice Myers affirmed some of the general principles with respect to the duties of a personal representative and the test to remove an executor or trustee if they are not meeting those duties. Here are the key points:
Mr. Justice Myers was careful to emphasize that animosity between the executor and a beneficiary is not on its own sufficient to warrant removal of an executor. However, animosity between co-executors can be relevant to whether it is reasonable to expect they can work effectively and efficiently together to carry out their duties. See here for our previous discussion of a case in which one co-executor was removed due to a stalemate between the co-executors that brought the handling of the estate to a grinding halt.
All four of the types of conduct that justify removal of Ingrid as an executor were present in the Nieweler Estate litigation, but Mr. Justice Myers was unable to find a rationale to remove Stephan. While it was inappropriate for Stephan to take the position he did with respect to listing one of the estate properties for sale, he eventually resiled from his position and the property was listed and sold. His conduct was nowhere near as serious as Ingrid’s and he did not put estate property at risk as Ingrid did. In the result, Ingrid was removed as executor and Stephan and Edward remained as co-executors. Stephan and Edward’s special costs of the application were ordered to be paid from the estate.
If co-executors cannot work together to carry out their duties in administrating an estate, the welfare of the beneficiaries may be harmed. Unreasonable delay, failure to act, and dishonesty may constitute grounds to remove an executor to protect the interests of the beneficiaries.
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