When Will The Court Remove An Executor? Two Recent Decisions From The Supreme Court Of British Columbia

Two recent BC Supreme Court decisions required the Court to determine when it is appropriate to remove an executor of an estate: Nieweler Estate (Re) 2019 BCSC 401 ("Nieweler Estate") and Burke v Burke 2019 BCSC 383 ("Burke").

The Court is generally deferential to a testator's choice for an executor. However, the Court will remove an executor if it believes there are good grounds to do so. The overarching consideration is whether the conduct of the executors harms the administration of the estate or the interests of the beneficiaries.

In Nieweler Estate, three siblings, Stephen, Ingrid, and Edward, were named as co-executors of their father's estate. The siblings were also all equal beneficiaries under the will.

In order to make any executor decisions, all co-executors had to agree because the will did not contain a majority clause allowing executor decisions to be made by a majority vote. The siblings were unable to agree on decisions regarding the distribution of the estate and Stephan brought a petition to have Ingrid removed as executor. In response, Ingrid sought to have Stephan removed as executor.

Stephan argued that Ingrid should be removed for various aspects of her conduct, such as:

refusing to sell one of the estate properties unless the other executors agreed to unreasonable conditions completely unrelated to the sale; purposely having her husband sabotage a sale of the property; having the locks changed for an estate property without authorization or providing the new keys to Stephan or Edward; lying to a bank who granted a mortgage for one of the estate properties and inviting the bank to foreclose on the mortgage; and withdrawing substantial sums of money from family company bank accounts without authorization or telling her brothers. Ingrid's main argument against Stephan was that when there were discussions about listing one of the estate properties for sale, Stephan indicated he would not agree to any sale unless certain conditions were met. However, Stephan eventually withdrew his demands and the property was sold.

In deciding the issue, the Court noted that while animosity between an executor and a beneficiary is not usually sufficient to remove an executor, animosity between co-executors can be relevant. This is because if executors cannot work together to carry out their duties, it harms the beneficiaries. For example, refusing to respond to requests for information, to sign cheques or provide an accounting, or to meet...