When Can an Executor Be Removed in British Columbia?

At MJB, our team of Estate Litigation lawyers often field inquiries from beneficiaries with concerns about how long it is taking the Executor of the Estate to distribute the inheritances set out in the Will.  The Executor is entrusted with managing and distributing the estate’s assets in accordance with the deceased’s will. It is a position of considerable responsibility and can be a more complicated assignment than the Executor initially expected. Often, delays in administering the estate are not the fault of the Executor. There are times, however, when Executors fail to complete their duties, act unlawfully or improperly or simply become unable to fulfill their obligations. In those instances, the beneficiaries may wish to seek the removal of the Executor.

In British Columbia, the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”), is the legislation governing the administration of Estates. Section 158 of WESA provides that the court may remove the Executor of an Estate if the court considers that the personal representative should not continue in office. If an Executor is removed, Section 159 of WESA sets out that the court must appoint another person, with the consent of that person, to be the substitute Executor of the Estate.

While Courts in BC have the authority to order the replacement of an Executor, there must be compelling evidence to convince the Court to exercise that authority. Courts will not interfere with a will-maker's choice of Executor without thorough consideration. Convincing evidence is required to meet the high threshold, and the primary consideration for the court is the collective welfare of the beneficiaries.

Hostility and conflict between the Executor and beneficiaries, on its own, is generally insufficient to meet the courts high threshold. Such friction may warrant the removal of the Executor if it rises to the extent that it prevents the Executor from properly administering the estate.

Our courts have enumerated four general categories of misconduct that may meet the threshold for removal of an Executor. Endangerment of trust property, want of honesty, want of proper capacity to execute duties, and want of reasonable fidelity, have all been held to warrant removal.

A common circumstance in which BC Courts have granted the removal of an Executor is where the Executor’s unwarranted delay and/or failure to take proper steps, has harmed the value of the estate. Examples include failing to pursue debts owed to the Estate and/or not listing real estate in a timely manner, without justification.

BC Courts have also granted the removal of an Executor when there is clear evidence of the Executor’s personal interest conflicting with the interests of the beneficiaries. Such a conflict can arise when an Executor has received an asset from the deceased, either during the deceased’s life or through a right of survivorship, following the deceased’s death. A beneficiary may allege that the asset was truly meant to be an Estate asset and that the Executor only holds the asset in trust for the Estate. If the Executor disagrees, a conflict will generally exist, and a Court may need to determine if the conflict is enough to disqualify the Executor.  

In summary, removing an Executor is generally a complicated process requiring extensive evidence and thorough preparation. If you are a beneficiary who is considering removing an Executor, the best place to start is by consulting with one of MJB’s experienced estate litigation lawyers. We can help protect your interests.