How to Get an Executor Removed in British Columbia

You may believe the executor is acting badly, ignoring beneficiaries, or has a conflict that makes fair administration unlikely. Removal is a serious step, and the court will want a proper reason.

This article explains the grounds, the application, and what happens to the estate afterwards in British Columbia.

This article covers the law of British Columbia.

Who can apply and on what grounds

Any person with an interest in an estate may apply to the court to remove or pass over a personal representative. The court may remove or pass over someone who should not serve. The grounds include the following.

• Refusing to act without renouncing, or purporting to resign.
• Being incapable of managing their own affairs.
• Being a dissolved corporation.
• A conviction for an offence involving dishonesty.
• Being an undischarged bankrupt.
• Being unable, unresponsive or unwilling to act to the extent it hampers administration.
• Holding power over financial affairs under the Patients Property Act.

A creditor can apply on the dishonesty-conviction or bankruptcy grounds only if their claim exceeds a prescribed amount.

Misconduct, delay and conflict

People often describe their concerns as misconduct, delay or conflict of interest. Those words are not themselves the test. The question is whether your situation fits one of the listed grounds, such as being unable, unresponsive or unwilling to act to the extent it hampers administration.

The listed grounds do not include simply being a beneficiary as well as an executor. If you are worried about how an executor who is also a beneficiary is behaving, accounts and court directions may be more useful than removal. A beneficiary can apply to have accounts passed, and an executor can petition for directions. A beneficiary may also seek leave to start proceedings on behalf of the estate after showing reasonable efforts to get the representative to act.

Accounts can show whether an estate is being handled properly. An executor, administrator or trustee under a will must pass accounts within two years of appointment. A person beneficially interested in the property can serve notice requiring annual accounts. A beneficiary who applies to have accounts passed must file an affidavit explaining why an accounting is required. Passing of accounts may proceed under Rule 8-3 if every interested person other than the applicant has consented to the accounts.

The court application

An application to remove, substitute or pass over a personal representative must be served on each personal representative, and personally served on them for these orders. The Supreme Court Civil Rules are being amended, so the exact way these applications are brought may have changed.

Your supporting evidence should be organized and factual: dates, letters, unanswered requests and any accounts or lack of accounts. Court rules about how applications are brought can change, so confirm the current process with a lawyer or the court registry before you file.

Before you apply, it helps to write a short timeline of events in plain language, and to think about whether asking for accounts or directions might address the problem sooner. How this applies depends on your situation, so it is worth confirming with a lawyer.

What happens if the court removes the executor

When the court removes or discharges a personal representative, it must appoint a substitute who consents to act, unless the estate is fully administered or a new appointment is unnecessary. The substitute has the same authority, and the former representative's grant is revoked.

A personal representative has the same authority over the estate as the deceased would have had if living, subject to any contrary intention in the will and to any enactment. They must use that authority to administer and distribute the estate and to account to the people they owe a duty to account to.

If the person was also a trustee, removal as personal representative does not remove them as trustee. A separate application may be needed, for example under Trustee Act s. 30, which allows removal of a trustee on a beneficiary's application with the consent of a majority of beneficiaries.

Alternatives and special cases

• Renunciation. A person named as executor may renounce, and the estate is then administered as if they had never been appointed unless the court orders otherwise.
• Former spouse. If the will-maker and spouse cease to be spouses after the will is made, the spouse's appointment as executor or trustee is revoked, subject to any contrary intention in the will. Married spouses cease to be spouses on an event such as separation, but they are not treated as separated if, within one year, they resume living together primarily to reconcile and live together for one or more periods totalling at least 90 days. Common-law partners are spouses only if they lived together for at least 2 years.

Whether a relationship ended in the way the law requires can be contested, so a lawyer should look at the facts.

What to do next

• Identify which listed ground, if any, matches what is happening.
• Collect letters, emails, accounts and notes of unanswered requests.
• Ask for accounts first if the problem is a lack of information.
• Consider who could take over, since the court must appoint a substitute who consents to act.
• Get legal advice before serving or filing anything.

Frequently asked questions