By Patrick McMurchy
The Wills, Estates and Succession Act, (“WESA”), provides the authority for a court to remove an executor.
As a general rule, courts are reluctant to make the order. Traditionally, there have been three reasons for this reluctance.
First, the appointment of an executor is seen as a right of a testator and is respected as part of testator’s autonomy. The courts have held this right of appointment should not be lightly interfered with. Presumably the will maker carefully selected someone they knew and trusted.
Second, an executor’s actions are legally presumed to been made in in good faith.
Third, the court will consider whether removing the executor will advance or impede the administration of an estate. Often applications for removal are brought well into the process after the administration of the estate is nearly completed.
WESA effectively adds a fourth reason for the court’s reluctance. Before WESA, a beneficiary had to obtain approval from the executor in order to take action on behalf of the estate, but now, under WESA a beneficiary may apply to the court for leave to act on behalf of the estate in certain circumstances.
However, there are situations in which an executor can be removed.
Some grounds for removal are obvious: dishonesty or a refusal or inability to act.
Other grounds arise from the nature of the executor’s office and duties that flow from that office. For example, an executor cannot personally profit from dealings with the estate property. Also, unless the will provides the authority to do so (which it sometimes does), an executor must not favour the interests of one beneficiary over another. Even where the executor has been honest, objective and careful, if they fail to act impartially, they may be removed.
Applications to remove an executor arise most often when there are conflicts between the executor and beneficiaries. But even a high level of conflict is not enough, in itself, to meet the legal test for removal. There must be other grounds, beyond animosity.
These other grounds may include where an executor has made decisions below the standard of an ordinary person’s prudence, common sense and level of skill, and by doing so, has endangered estate property. But the standard is not a standard of perfection.
This short article is intended to give the reader a general understanding of some of the basic principles respecting removal of an executor. It is not intended as legal advice. In estate litigation outcomes very much depend on the specific facts of each case.