Removal Of A Personal Representative - When And Why?

Under what circumstances can and should a Court remove a Personal Representative appointed by the will of a deceased? This was the main issue which faced Justice Gogan in the matter of Willisko v. Pottie Estate, 2014 NSSC 389.

Allister Michael Pottie died on August 19, 2010. He was predeceased by his wife. They had nine children. Under his will dated September 29, 2008, one of the children, Valerie Ann Murphy, was appointed Personal Representative. By the early fall of 2013 administration of the estate had not progressed sufficiently in the view of at least one of the deceased's other children, Sharon Louise Willisko. Accordingly Ms. Willisko applied in October 2013 for an Order removing Ms. Murphy as Personal Representative. Justice Gogan rendered her decision on October 27, 2014.

At the time the matter was heard Ms. Murphy had not yet opened probate nor had she filed an Inventory as required by the Probate Act. As well, a dispute remained as to what should become of money in a bank account held jointly by the deceased and Ms. Murphy. She took the position it was her father's intention that she receive these funds. Other siblings took the position it should form part of their father's estate.

The application was brought under section 61 of the Probate Act. This section gives the Court authority to remove a Personal Representative. The general power can be exercised if the Court is satisfied that removal of the Personal Representative would be in the best interests of those persons interested in the estate.

Justice Gogan reviewed prior authorities which addressed the principals upon which the Court's authority is to be exercised. The cases confirm that the Court is not to remove a Personal Representative lightly or without good reason based on evidence. Unless the circumstances clearly warrant removal, the testator's choice of Personal Representative should be respected. The onus is on an applicant to satisfy the Court on a balance of probabilities that removal is warranted.

In Her Ladyship's decision, Justice Gogan provides a very useful and comprehensive overview of the duties and responsibilities of a Personal Representative. Some of these are found directly in the Probate Act while others have been developed through jurisprudence.

Justice Gogan stated her opinion that the primary guide the Court must follow in deciding whether or not to remove a Personal Representative is the welfare of the beneficiaries. Her Ladyship noted that, in and...