The court may pass over a person entitled to become the personal representative if the court considers that the person should not be granted probate or administration. This was discussed in a previous post which can be found here.
However, the more common complaint that we hear from our clients is one of frustration with the personal representative after the personal representative has obtained a grant and has started to administer the estate. They want the personal representative to be removed and replaced.
We’ve heard a range of complaints about an executor’s conduct. The concerned party may allege fiscally irresponsible or even criminal conduct by the executor that puts the estate property at risk. Often, however, the concerns may not be as serious on their face. A beneficiary is concerned that the executor is favoring other beneficiaries and not treating all beneficiaries with an even hand. A beneficiary doesn’t agree with certain decisions made or steps taken by the executor, such as a listing price for real estate owned by the estate, or the decision not to pursue legal claim to recover assets on behalf of the estate, when the outcome of the litigation is uncertain. A beneficiary isn’t happy with how long it is taking to wind up the estate. A beneficiary simply doesn’t get along with the executor, and doesn’t want to have to deal with this person until the estate is wound up. At what point will the court agree to step in and remove the executor?
The court has the jurisdiction to remove and replace a personal representative after the grant of probate or administration has been obtained and the personal representative has started to administer the estate. The grounds for removing and replacing a personal representative are the same as the grounds for passing over a personal representative. Any person having an interest in an estate may make the application to remove the personal representative.
Section 158(3) of the Wills, Estates and Succession Act sets out some of the grounds for removing an executor or administrator, including the personal representative’s refusal to act, incapability, conviction of an offence involving dishonesty, or bankruptcy. It also provides that a personal representative may be removed if that person is “unable to make the decisions necessary to discharge the office of personal representative, not responsive, or otherwise willing or unable or unreasonably refuses to carry out the duties of a personal representative to an extent that the conduct of the personal representative hampers the efficient administration of the estate.”
To succeed in removing and replacing a personal representative on the basis of misconduct, the applicant must convince the court that the executor acted in a manner that endangered the estate, or acted dishonestly, without reasonable fidelity or without the reasonable capacity to execute the duties of the office. The fundamental consideration is the welfare of the beneficiaries.
The court will not disturb the deceased’s choice of executor lightly. The existence of friction between the personal representative and one or more beneficiaries is usually not enough, on its own, to justify removal of the personal representatives. If a beneficiary doesn’t get along with the personal representative, or doesn’t agree with a step taken by the personal representative, or doesn’t believe the personal representative is acting quickly enough, this will likely not be enough to justify the removal of the personal representative. There must be some risk to the estate which will arise if the personal representative is not removed.
There may be other consequences for lesser conduct that does not reach a level that justifies removal of the executor, such as (1) a reduction in the executor’s fee that is ultimately approved by the court, or (2) refusal by the court to approve payment from the estate for unnecessary expenses claimed by the executor.
We have also been consulted where there is disagreement or hostility as between the co-executors themselves, and as a result estate administration grinds to a halt or is otherwise hampered. In such a case, the Court may remove one or more of them to ensure proper and timely administration of the estate.