How to Apply to Court to Remove an Executor in British Columbia

If you are a beneficiary and you believe the executor is not doing the job, whether through delay, conflict or something more serious, you may be thinking about asking the court to step in. It is a significant step, so it helps to understand the legal route and what a judge will want to see.

This article explains the application under the Wills, Estates and Succession Act (WESA), the grounds the court considers, and what follows if the executor is removed. Every estate is different, and a lawyer can tell you whether your facts support an application.

This article covers the law of British Columbia.

Which application to bring

Under WESA section 158(2), a person having an interest in an estate may apply to the court to remove or pass over a person entitled to act as personal representative. Removal deals with someone already acting. Passing over means granting probate or administration to someone with lower priority than the person passed over.

Removing an executor does not, by itself, remove that person as trustee of any trust under the will. That needs separate relief, so if the will creates trusts, your application should address both roles.

If the executor lives outside British Columbia, a BC court may still have jurisdiction. A real and substantial connection to BC is presumed in a proceeding about administering a deceased person's estate where the deceased had immovable property in BC, or movable property anywhere if ordinarily resident in BC at death. A BC court may still decline jurisdiction if a court of another province or country is a more appropriate forum.

The grounds the court considers

The court may, subject to the will, remove or pass over a person it considers should not act. The listed grounds include refusing to act without renouncing, incapacity, a conviction for dishonesty, an undischarged bankruptcy, and being unable or unwilling to perform duties in a way that hampers administration of the estate.

Creditors face a limit: applications by creditors that rely on the dishonesty-conviction and bankruptcy grounds are limited to claims above a prescribed amount. Beyond these listed grounds, how a judge weighs the evidence depends on the facts, and a lawyer can advise on how courts have approached it.

Evidence that helps

The most persuasive material is usually documentary. Think about what shows that the executor is unable or unwilling to perform duties, and that this is hampering the estate.

• Letters and emails asking for information or action, and the executor's replies or silence.
• Records showing missed steps, such as an estate that has sat without progress.
• Bank or property records that raise concerns about how estate assets are handled.
• Evidence of incapacity, bankruptcy or a conviction for dishonesty, where those grounds apply.
• Your own proof that you have an interest in the estate.

Accounts can also matter. Executors, administrators and trustees under a will must generally obtain an order for passing their first accounts within two years of the grant or appointment, unless the exceptions in the Trustee Act apply. A trustee who fails to pass accounts as required may be called before the court to explain why.

What happens if the executor is removed

When the court discharges or removes a personal representative, it must appoint a substitute who consents to act, unless administration is complete or a new appointment is unnecessary. The court may also appoint the substitute as trustee. The former representative's grant is revoked, and the substitute takes over the former representative's authority and duties.

The court may require security from a substitute if the Supreme Court Civil Rules require it. Where special circumstances make it appropriate, the court may appoint any person it considers appropriate as administrator, with or without conditions, and for general, special or limited purposes.

The Public Guardian and Trustee may administer an estate where it is named executor in the will, or where no suitable person is willing or able to administer. Anyone aware of an estate needing administration can refer it. The Public Guardian and Trustee may decline an estate whose assets are not sufficient to pay funeral costs and its fees, it usually requires consent from all or most known beneficiaries or heirs, and it does not resolve family disputes over who should administer.

What to do next

• Write to the executor first, setting out what you need and by when; keep copies.
• Consider whether a less drastic step works, such as asking for accounts to be passed.
• Find out whether the executor might step aside: an executor who has not yet acted can renounce, and one who has taken out a grant can apply to be discharged.
• Think about who could act as a substitute and whether they would consent.
• Get legal advice on the evidence, the will's trust terms and the court rules before you file.

Frequently asked questions