We see many beneficiaries who believe that the Executor is not acting quickly enough or in a fair and even-handed way, and wish to have the Executor replaced. While the BC Courts have the authority to order the replacement of an Executor, there must be compelling evidence to convince the Court to exercise that authority. Our BC Courts are typically reluctant to order the removal and replacement of the Executor.
The BC test for removal of an Executor has been the same since 1952: where the Executor’s actions cause the trust property to be endangered, the Court may order a removal and replacement of Executor. However, the acts or omissions must show “a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity”.
Where there are two Executors who cannot communicate or take steps to move the administration of the Estate forward, the Court may order the removal of one of the Executors. This happened in the 2011 decision, Levi-Bandel v. McKeen. There, the two Executors of an Estate could not even provide consistent instructions to the Estate solicitor or to the Estate accountant. The solicitor ended the retainer, and the accountant brought a law suit against the Estate so that she could be paid for work done to date. The Court found that “the estate has been paralyzed by the tension between the two” Executors, and that the “only practical way to deal with the road block is to remove one” of them. The Court therefore ordered that one Executor be removed.
However, for every case where the Court is persuaded to remove and replace an Executor, there are other cases where the Court finds there is not enough evidence to do so. This means that, when drafting your own will, you must give very careful consideration to the person you are asking to act as your Executor. If you are considering appointing more than one Executor, consider whether it makes practical sense to do so, and whether those individuals are likely to work well together. The wrong choice of Executor or the wrong mix of Executors could lead to significant delay and extra costs during the ultimate administration of your estate.
