How to address problems with joint executors
Many parents name their children and relatives as joint executors of their estate in their will. This may be problematic where families do not get along, or bad blood has developed since the signing of the will. The law requires persons who are joint executors of an estate make any decisions together. This can be especially problematic where executors can’t agree on financial matters such as selling a house or how to carry out the terms of a will. What can you do if you are in this situation?
One solution is to apply to court to “pass over” or “remove” one of the other executors. Section 158 of the Wills, Estates and Succession Act, SBC 2009 Chapter 13 allows a person who has an interest in the estate (including someone who receives something under a will) to ask the court to remove someone who is executor or bypass a potential executor. In order for the court to do so, it must be satisfied that the current executor or the potential executor should not continue or become the executor for any number of the following reasons:
(a)refuses to accept the office of or to act as personal representative without renouncing the office,
(b)is incapable of managing his or her own affairs,
(c)purports to resign from the office of personal representative,
(d)being a corporation, is dissolved or is in liquidation other than a voluntary dissolution or liquidation for the purpose of amalgamation or reorganization,
(e)has been convicted of an offence involving dishonesty,
(e.1)is an undischarged bankrupt,
(i)unable to make the decisions necessary to discharge the office
of personal representative,
(ii)not responsive, or
(iii)otherwise unwilling or unable to 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, or
(g)a person granted power over financial affairs under the Patients Property Act.
This may be useful where a joint executor has received a gift from the deceased under suspicious circumstances and is refusing to recover it, or where a person named as an executor isn’t taking any steps to wrap up or deal with the estate.
An executor who simply isn’t getting along with a beneficiary is not reason on its own to have them removed or passed over. The court looks at welfare and the best interest of the beneficiaries as a whole. In order to be removed, the executor must have done something which renders them incapable of exercising their duties as an executor. When considering this, the court looks at (from Conroy v. Stokes, 1952 CanLII 227 (BC CA)) :
- Whether they endangered the estate’s property
- Whether they have been dishonest
- Whether they have capacity to execute the duties; and
- Whether there is a conflict between the executor’s interest and the estate’s interest
Dealing with probate and estate matters can be complicated as there are special Supreme Court Civil Rules that apply to probate and estate matters. If you need help, contact a lawyer to make sure you understand your rights.