Compelling An Executor to Act – Part 2

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When you are involved in Estate Litigation, if an Executor is unwilling or unable to act, it can create significant delays and frustrate claimants and or beneficiaries who are trying to prosecute their claim. In Part 1 of this Blog series, we discussed the expanded role of Citations under the Probate Rules.

An alternative option to a citation is for some or all of the beneficiaries to a will to bring an application before the Court seeking an Order that an Executor be removed and replaced. This issue of Compelling an Executor to Act was recently considered by Mr. Justice Burnyeat in the decision of Kyle Estate v. Kyle, 2016 BCSC 85. In his reasons for Judgment, Mr. Justice Burnyeat explained the test as follows:

 [86]  The Court has the inherent power to remove a personal representative and  appoint a new personal representative. As well, that power is legislatively provided under  sections 158 and 159 of the Wills, Estates and Succession Act, R.S.B.C. 2009, c. 13. The  power to remove a personal representative is ancillary to the court’s primary duty of  ensuring that estates and trusts are properly administered. The question in each case is whether circumstances are such that the continuance of the office of the personal   representative would be detrimental to the estate: Conroy v. Stokes, 1952 CanLII 227 (BC CA), [1952] 4 D.L.R. 124 (B.C.C.A.).

[87] A personal representative may be removed for misconduct, conflict of interest,   misuse of estate assets and lack of even handedness: Conroy, supra; Hall (Public Trustee of) v. Hall (1983), 1983 CanLII 396 (BC SC), 45 B.C.L.R. 154 (B.C.S.C.). A trustee may    also be removed if he or she deals with estate assets without the knowledge or approval of the beneficiaries in a manner that endangers those assets and this results in a personal    benefit to the trustee. Such actions demonstrate a want of fidelity and conflicted interest  and duty: Hall, supra at p. 157.

[88] The paramount concern of the Court in determining whether to remove a  personal representative is the welfare of the beneficiaries and not one in particular: McKay v. Howlett, 2003 BCCA 555 (CanLII). Flowing from this, a personal representative can be removed for lack of neutrality, failure to disclose estate information or other misconduct including treating one or more of the beneficiaries with hostility:          Dirnberger Estate Re, 2016 BCSC 439 (CanLII).

Although this case dealt with the removal of a Trustee, a removal application can result in the Court making Orders that the Executor or Trustee comply with specific timelines to ensure there is no delay and no harm to the beneficiaries.

If you are involved in Estate Litigation that involves compelling an Executor to act, contact the Kushner Law Group today to schedule a consultation.

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