As an experienced lawyer who has drafted countless Wills in my career, it is not uncommon for my clients to name their children as joint executors of their estate in their Will. Appointment of joint executors requires these individuals to make all decisions affecting the Estate together by consent. This requirement that all executors act unanimously may prove problematic where the children maintain a veneer of a loving relationship for the sake of their parents which inevitably breaks down upon the passing of their parents. The requirement of unanimity between joint executors can create undue delay and additional financial and legal costs where the joint executors can’t agree on matters such as selling a house or how to carry out the terms of a Will.
What can one do in a situation where one cannot act in co-operation with a co-executor?
An option is to apply to court to “pass over” or “remove” the other co-executor with whom you cannot co-operate. Section 158 of the Wills Estates Succession Act (“WESA”) empowers a court, upon application from someone who has an interest in the estate (executor or beneficiary), to remove someone who is executor and has begun the process of the administration of the estate or to bypass a named executor prior to that executor handling the estate. In order for the court to make an order removing or bypassing an executor, the Court must be convinced the executor should not continue or become the executor for any number of the following reasons:
(a) refuses to accept the office of or to act as personal representative without renouncing the office,
(b) is incapable of managing his or her own affairs,
(c) purports to resign from the office of personal representative,
(d) being a corporation, is dissolved or is in liquidation other than a voluntary dissolution or liquidation for the purpose of amalgamation or reorganization
(e) has been convicted of an offence involving dishonesty
(e.1) is an undischarged bankrupt,
(i) unable to make the decisions necessary to discharge the office of personal representative,
(ii) not responsive, or
(iii) otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative, to an extent that the conduct of the personal representative hampers the efficient administration of the estate, or
(g) a person granted power over financial affairs under the Patients Property Act.
Section 158 of WESA may be relied upon where the executor to be removed has received a gift from the deceased under suspicious circumstances and is refusing to return it to the estate or where a person named as an executor is either by intent or omission failing to take the necessary steps to deal with the estate.
Mere personality clashes between executors or between executor and beneficiary is not a sufficient reason in and of itself to have an executor removed or bypassed. Further, the Will-maker’s decision to appoint an executor is not to be lightly interfered with by the Court but rather what is in the best interests of the estate and its beneficiaries as a whole. When determining whether an executor is to be removed or bypassed, the Court will consider the following factors:
1. Whether the executor has endangered the estate’s property or will likely endanger the estate’s property;
2. Whether the executor has a history of dishonesty in business or personal dealings;
3. Whether the Executory has the mental capacity to execute the duties of an executor; and
4. Whether there is an actual or potential conflict of interest between the interest of the executor and the executor’s interest and the estate’s interest.
Contested estate matters involve relatively complicated legal issues that are further complicated by a special set of rules that govern how these contested matters are to be resolved and so it is usually not recommended to self-represent in such situations.
If you or a loved one are in need of advice regarding a contested Estate or Probate matter, consult Vancouver and Burnaby Probate lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at [email protected] or 778-372-7107.