Removing Executor for Conflict of Interest Vancouver Estate Litigation Lawyers

Executors are critical cogs in the machinery of administering an estate. An issue that often arises in the context of Estate litigation is when a beneficiary would like to see an executor removed. Courts are reluctant to remove executors solely at the whim or request of a beneficiary in order to respect the principle of testamentary intent. However, there are certain times when it may be appropriate to bring an application to have an executor removed and one context is when the executor finds themself in a conflict of interest.

Vancouver Estate Litigation Lawyers

In the British Columbia Supreme Court decision of Yeh Estate (Re), 2016 BCSC 1550, the petitioners brought an application to have the executor removed. In this circumstance, the named executor had also commenced an action under the Wills Estates and Succession Act (“WESA”), to have the will under which she was named as executrix varied. The petitioners argued that the Executrix was in a conflict of interest and that she should be removed. The Honorable Mr. Justice Williams summarized the law on this issues as follows:


[16]         I have reviewed the authorities provided by counsel on this issue. It is clear that             this Court has a broad discretion—both through its inherent jurisdiction and under s. 31           of the Trustee Act, R.S.B.C. 1996, c. 464—to remove an executor or trustee where a    conflict of interest exists: see Mardesic v. Vukovich Estate (1988), 30 B.C.L.R. (2d) 170,         at 173–74 (S.C.).


[17]         The main consideration in whether to exercise that discretion is the welfare of    the beneficiaries: Thomasson Estate (Re), 2011 BCSC 481, at para. 22. Even a            “perceived” conflict of interest between an executor’s personal interests and her duty to     act in the interests of the beneficiaries of the will can be sufficient to warrant her         removal: Ching Estate (Re), 2016 BCSC 1111, at para. 22.


[18]         The respondent’s essential position here is that the will should not be enforced   as it reads on its face—that is, that the deceased’s interest in the Property (as it was prior       to the transfers) should not pass to the petitioners.


[19]         That puts the respondent in a fundamental conflict of interest. Her position in     this dispute (certainly as regards the Property) is squarely at odds with her role as         executor to administer the will.


[20]         Accordingly, I will grant the petitioners’ application to remove her.


Contact Vancouver Estate Litigation Lawyers Today!

If you are involved in Estate Litigation are the beneficiary to an estate and dealing with  a problematic executor, contact the Kushner Law Group today to schedule a consultation.

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