While BC Courts have the power to remove executors and
administrators, it is rarely exercised. Our Courts have held
that "not every act of misconduct should result in
removal". You may wonder, then, what misconduct would
result in removal of an executor or administrator? The BC
Supreme Court answered this question last Friday, in the Estate of Forbes McTavish Campbell.
Mr. Campbell died intestate in 2011. As he was divorced at
the time, his three children were appointed as co-administrators in
April 2012. The estate in BC was modest, and appeared to
have been reduced in size by Mr. Campbell's caregiver.
Apparently, the caregiver absconded with $175,000 in cash, the
deceased's car, proceeds of a mortgage against real property
(allegedly obtained through forgery), and certain other
assets. The administrators reported the losses to the police,
and investigations were made but had not resulted in an arrest at
the time of the application.
The administration of the estate had come to a halt.
Two of the administrators wished to move forward with
administration, but the third refused to do so. The two
administrators' lawyer made a detailed and reasonable written
plan to move forward with the administration of the estate.
The third administrator's response email advised that he
would communicate with the lawyer, but at a cost of $300 per email,
$500 per telephone call, and $1,500 per letter. As you may
imagine, this offer was not accepted by the two administrators
(and was not well received by the Court either).
Ultimately, the two administrators brought an application to
have the third removed. The Court found that the third
administrator's behaviour was so unreasonable and
uncooperative that he must be removed. Some (but by no
means all) examples of the improper behaviour included:
advising the Court at the hearing that he was holding an
envelope containing evidence he had uncovered demonstrating
that the two administrators had colluded with the caregiver in
defrauding the deceased, but refusing to allow the two
administrators to know the contents of the envelope;
insisting that he need not communicate with his
co-administrators until they each first paid him almost
showing himself to be "unable to communicate in a mature
and civil fashion". Rather, his emails were
"condescending and thoroughly disrespectful in tone and
content" and "relentlessly juvenile, profane and
The Court noted that the test on a removal application was the
welfare of the beneficiaries of the estate. The Court then
referenced section 158 of the new Wills, Estates and
Succession Act, which permits a Court to remove an
administrator. The specific grounds for removal referenced in
this case were in s. 158(3)(f):
unable to make the decisions necessary to discharge the office
of personal representative;
not responsive; or
otherwise unwilling or unable to or unreasonably [refusing] to
carry out the duties of a personal representative.
The Court found that the third administrator's behaviour met
these grounds, and ordered that the third administrator be
The Court found the third administrator's
"reprehensible behaviour" was so egregious as to be
deserving of an order that he personally pay the costs of the
co-administrators on a special costs basis. The Court did so
not only as a form of "punishment of a wayward party",
but also to "serve as a warning to others entrusted with the
important duties of administering estates: trustees who engage
in this sort of nonsense will pay a high price."
I understand that the third administrator has indicated he
will be appealing this order. If so, stay tuned for the next
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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