Does Removing an Executor in BC Also Remove Them as Trustee?

Many wills name one person as executor and also as trustee of a continuing trust, such as a trust for children or a life interest for a spouse. If that person is not doing the job properly, it is natural to assume that removing them from one role removes them from both.

In British Columbia, that assumption can be wrong. This article explains who can apply to remove a personal representative, the grounds the court looks at, what happens afterwards, and why the trustee role needs to be dealt with at the same time.

This article covers the law of British Columbia.

Who can apply, and on what grounds

Under the Wills, Estates and Succession Act (WESA), 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. Beneficiaries are the usual applicants, but the section is not limited to them.

Subject to the will, the court may 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
• being unable or unwilling to perform duties in a way that hampers administration of the estate

There is a limit for creditors. WESA s. 158(3.1) restricts creditor applications that rely on the dishonesty-conviction and bankruptcy grounds to claims above a prescribed amount.

Removal versus passing over

The two terms are related but different. To pass over someone means granting probate or administration to a person with lower priority than the person passed over. In practice, passing over deals with who receives the grant in the first place, while removal deals with someone who already holds the role.

The trustee role is a separate question

Here is the key point. Removal of a person as personal representative does not by itself remove that person as trustee of any trust under the will. That requires separate relief.

If you only ask for removal as personal representative, the former executor could remain trustee of a trust created by the will. That could leave them controlling assets held for children or for someone with a life interest, which is often the very thing you were worried about.

What the court does after removal

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.
• The substitute takes over the former representative's authority and duties.
• The court may require security from the substitute if the Supreme Court Civil Rules require it.

In special circumstances, the court may also appoint any person it considers appropriate as administrator, with or without conditions, and for general, special or limited purposes. This gives the court flexibility where a full, ordinary appointment does not fit.

What to do next

If you are considering an application, think about the whole structure of the will before filing. A lawyer can confirm which relief to request and how the court is likely to approach your facts.

• Read the will to see whether the same person is named as executor and as trustee.
• Identify which ground in s. 158(3) fits the facts, and gather documents that support it.
• Ask for removal as personal representative and, separately, for relief removing the person as trustee, in the same application.
• Ask the court to appoint a suitable substitute who has agreed to act, as a personal representative and as trustee where needed.
• Check whether other steps, such as an accounting, are also needed.

Frequently asked questions