Vancouver Removal Of Executor and Trustee Lawyer
The BC MacLean Estate Litigation team are experienced Vancouver Removal Of Executor and Trustee Lawyers. Simply calls us in Vancouver at 604-602-9000 to get immediate assistance from us. Factors to be looked at when removing a BC Will Executor or Trustee include, capacity of and compliance by the executor with their duties in the Will, their ability to act impartially and honestly coupled with deference to the Will Maker’s choice of executor and trustee.
The Law On Removal Of Executor and Trustee in Vancouver
[37] The general test for removal of trustees/executors is set out in Letterstedt v. Broers (1883-84) L.R. 9 App. Cas. 371 (South Africa P.C.) at 385-389. Lord Blackburn says:
[The] main guide must be the welfare of the beneficiaries…The acts or omissions must be such as to endanger the trust property, or to show a want of honesty, or want of property capacity to execute the duties, or a want of reasonable fidelity.”
[38] Lord Blackburn stated at 387:
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above annunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a manner so essentially dependent on details often of great nicety. But they proceed to look carefully into the circumstances of the case.
[39] Letterstedt was followed in Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.) at 127.
[40] As noted by Donovan Waters, Q.C. in Water’s Law of Trusts in Canada Fourth Edition at 898:
… it is clear that much will turn on the facts of the particular case, and it is only by an analysis of the cases that the manner of application of those guidelines can be seen. The dishonesty of the trustee is an obvious ground for his removal. It is the gravest breach of trust, but dishonesty can extend beyond the situation where the trustee appropriates the trust property for himself to the situation where he has a discretion as to the division of the fund between himself and … other persons, and allocates to himself the lion’s share.
[41] Courts are reluctant to remove an estate trustee. A priority is to respect the testator’s decision in appointing that person: Veitch v. Veitch Estate, 2007 BCSC 952.
[42] Animosity or hostility between an executor and a beneficiary is not sufficient on its own to warrant removal as an executor: Letterstedt at 389.
45] I must consider whether Ms. Nicholson has complied with her obligations as the executor of the deceased’s estate. As noted by Dr. Waters at 899, it is not a question of whether Ms. Nicholson has acted to the detriment of the other beneficiary Mr. Browne. It is a question of whether it would be difficult for her to act with impartiality, not whether she would or would not do so.
[46] The parties have provided numerous authorities that outline the court’s consideration where it is asked to remove an executor. There is no dispute about the legal framework.
[47] Though the task is to be performed delicately, I am satisfied that Linda Nicholson ought to be removed as an executor and that Wayne Browne should be appointed as the executor in her place. Though I recognize that Winnifred Brown’s decision was to appoint Linda Nicholson as the executor, I consider that there are several factors which demonstrate that she should not remain as executor.
[48] The will contemplates that Wayne Browne will act as executor if Linda Nicholson is unwilling or unable to act. This was considered a significant factor in Weinstein v. Weinstein (1996), 81 B.C.A.C. 282, (B.C.C.A.) at para. 13.
[49] In respect of the concern that Linda Nicholson cannot act impartially, I am persuaded by the letter from Mr. Bradford amply demonstrates this.
Act Promptly By calling Our Vancouver Removal Of Executor and Trustee Will Lawyers
In short executors who are unwilling or unable to act and who cannot act impartially can and should be removed. However, deference to the Will maker’s choice of executor shows that Vancouver estate litigation Courts will be careful before doing so.
