This Blog was written by Edward Ngo, Estate and Trust Advisor at MD Private Trust Company which is part of Scotia Wealth Management

As the autumn leaves begin to fall and the cold air catches our breath, I remind myself there is no such thing as a simple will or a straightforward estate.

The same can be said for an executor named in a will, where each appointed family member or friend carries their own burden, grief and responsibilities.

Unfortunately, the pandemic waits for no one and families have experienced untimely and unexpected passing of loved ones and friends. This has inevitably thrust individuals into an executor or administrator role they may not have anticipated or are prepared for.

In these unusual times, the idea of removing or passing over an executor is worth revisiting. Particularly when the provincial State of Emergency in British Columbia (BC) ended several months ago[1], coupled with abiding by BC’s Restart Plan, delays in the administration of any estate, let alone a complex one, has become a reality.

Fortunately, there is an “Executor’s Year”, a common law rule that gives an executor of an estate 12 months from the date of death of the testator to call in the assets of the estate, pay debts and liabilities, and to distribute net assets to beneficiaries in accordance with the provisions of the will, before beneficiaries have a legal entitlement to demand payment.

The rationale for the rule is executors must not unduly delay the administration of the estate. But what happens if the Executor’s Year has passed, and family conflict arises?

For executors who are elderly, an essential worker, a physician or a healthcare worker, the challenges they face (liability, time drain, accounting) are amplified by physical limitations and psychological challenges of navigating the pandemic.

Executors can be removed under the Wills, Estates and Succession Act (WESA), the Trustee Act and the inherent jurisdiction of the Supreme Court of British Columbia.[2]

The principles that guide the court’s discretion in deciding whether to remove an executor  are as follows:

1. the court will not lightly interfere with the testator’s choice of executor(s);[3]
2. clear evidence of necessity to remove an executor is required;
3. the court’s main consideration is the welfare of the beneficiaries; and
4. the executor’s acts or omissions must be of such a nature as to endanger the administration of the estate.[4]

Additionally, an impasse between co-executors that interferes with the proper administration of the estate may suffice to justify passing over one or more of them, even without a showing of wrongdoing.

In Weisstock v. Weisstock, 2019 BCSC 517, two brothers were named as co-executors in their late mother’s will, but due to acrimonious disputes that arose, neither of the brothers believed the other was fit to serve in that capacity. Both applied to the court to remove the other as executor. The Honourable Mr. Justice Milman concluded the appropriate order was for both co-executors to be passed over in favour of an impartial professional executor.

In all cases, the fundamental issue must be the welfare of the beneficiaries. If you are acting as an executor or trustee, you must ensure you prioritize properly administrating the estate and act in the best interests of the beneficiaries. As a beneficiary, note that the estate cannot be wound up overnight and can be truly time consuming.

When this is all not possible or reasonable, appointing a professional executor, either alone or alongside a friend or family member to strike a balance to carry out the testator’s final wishes, should be considered.

[1] https://news.gov.bc.ca/releases/2021PSSG0043-001208. BC’s provincial state of emergency ended on July 6^th, 2021 after being declared on March 18, 2020. Within this time period, we have dealt with lockdowns, social distancing protocols, temporary small business closures, mandatory mask mandates, 3 waves, variants, vaccinations, and vaccine passports.

[2] S. 158 (3) WESA and S.31 Trustee Act.

[3] Chambers Estate v. Chambers, 2013 ONCA 511.

[4] In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees.