VANCOUVER, BC—(Marketwired – November 22, 2017) – As a team of Vancouver lawyers, the professionals at Kushner Law Group understand how an executor who's unwilling or unable to act can hold up estate litigation. In a recent blog post, the team explored the expanded role of citations under the Probate Rules. The second part of this series delves into a specific case: Kyle Estate v. Kyle, 2016 BCSC 85. For more, go to: http://kushnerlaw.ca/compelling–executor–act–part–2/
As the article explains, an alternative option to a citation is for some or all of the beneficiaries to a will to bring an application before the Court seeking an order that an executor be removed and replaced. This was what Mr. Justice Burnyeat considered in the aforementioned case.
 The Court has the inherent power to remove a personal representative and appoint a new personal representative. As well, that power is legislatively provided under sections 158 and 159 of the Wills, Estates and Succession Act, R.S.B.C. 2009, c. 13. The power to remove a personal representative is ancillary to the court's primary duty of ensuring that estates and trusts are properly administered. The question in each case is whether circumstances are such that the continuance of the office of the personal representative would be detrimental to the estate: Conroy v. Stokes, 1952 CanLII 227 (BC CA),  4 D.L.R. 124 (B.C.C.A.).
 A personal representative may be removed for misconduct, conflict of interest, misuse of estate assets and lack of even handedness: Conroy, supra; Hall (Public Trustee of) v. Hall (1983), 1983 CanLII 396 (BC SC), 45 B.C.L.R. 154 (B.C.S.C.). A trustee may also be removed if he or she deals with estate assets without the knowledge or approval of the beneficiaries in a manner that endangers those assets and this results in a personal benefit to the trustee. Such actions demonstrate a want of fidelity and conflicted interest and duty: Hall, supra at p. 157.
 The paramount concern of the Court in determining whether to remove a personal representative is the welfare of the beneficiaries and not one in particular: McKay v. Howlett, 2003 BCCA 555 (CanLII). Flowing from this, a personal representative can be removed for lack of neutrality, failure to disclose estate information or other misconduct including treating one or more of the beneficiaries with hostility: Dirnberger Estate Re, 2016 BCSC 439 (CanLII).
It should be noted that while this case dealt with the removal of a trustee, the Court can make orders that the executor or trustee comply, with specific timelines to ensure there is no delay and no harm to beneficiaries.
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