When a testator makes a Will, one of the most important considerations is the choice of executor. An executor is in charge of handling the administration of the estate after the testator’s death, which is a task requiring a great deal of trust. Executors are required to act in the best interests of the estate and have several duties imposed under s. 142(2) of the Wills, Estates and Succession Act (WESA), which states:

(2) A personal representative must exercise authority to

(a) administer and distribute the estate in respect of which the personal representative is appointed,

(b) account to beneficiaries, creditors and others to whom the personal representative has at law a duty to account, and

(c) perform any other duties imposed on the personal representative by the will of the deceased person or by law.

Pass Over Applications

In many cases, a testator will name more than one executor in order to allow multiple people to share the considerable responsibilities, as they can be time-consuming. Of course, a common issue that can arise from this arrangement is a disagreement among the executors on how to handle various aspects of the estate. If one executor or another interested party, such as a beneficiary, feels that a named executor is not acting in the best interests of the estate, they can file a Pass Over Application with the Court in order to request a named executor be removed and replaced with someone else. Pass Over Applications are made pursuant to s. 158 of the WESA, and a court may choose to remove or pass over a named personal representative if the person named is:

  • unable to make the decisions necessary to discharge the office of personal representative,
  • not responsive, or
  • otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative.

In a recent decision of the Supreme Court of British Columbia, the court was faced with this consideration in a case where there were two executors appointed under the Will, and several beneficiaries sought to have one executor removed.

In this case, the deceased had been married, and he and his wife had five children together. The couple divorced in 1988, and at that time the deceased had been living in a common-law relationship with the defendant, DL. In his Will, the defendant named two executors; his common-law wife, DL, and his sister, ND.

The five children of the deceased filed the Pass Over Application, seeking to have DL passed over as an executor of the estate because DL had a poor relationship history with the plaintiffs, stemming from the fact that the deceased had carried on an affair with DL, which was the cause of his eventual divorce from the plaintiffs’ mother.

The plaintiffs’ arguments centred around the fact that the deceased’s relationship with DL had been the cause of their parents’ divorce, and that the children felt there had been hostility between themselves and DL in the intervening years. Further, DL had two grown children of her own, who were also named beneficiaries in the Will. The plaintiffs advanced the notion that they worried DL would place the interests of her own children ahead of theirs in the administration of the estate.

Bad Blood and Hurt Feelings Not Sufficient to Sustain Application

After examining the evidence presented, the court found that while there was certainly a tenuous history between the plaintiffs and DL, owing to how DL’s relationship with the deceased began, there was insufficient evidence to demonstrate that DL would fail to carry out the duties imposed on her as an Executor. DL and the deceased were in a relationship for over 30 years, and it was natural that the deceased had developed a close relationship with DL’s children and that he would include them as beneficiaries to his Will. Further, DL and ND appeared to work well together as co-Executors. As a result, there was no justifiable reason to remove or pass over DL as an Executor for the estate.

A Third Party Executor May be an Ideal Solution

When there are complicated relationships involved between family members, appointing a neutral third party as Executor to an estate can be an ideal solution. This can help take the pressure off of family members who are grieving the loss of a loved one and remove family drama from the equation when it comes to the distribution of the estate proceeds. At Cherkowski Marsden LLP, we provide Executor services in which our lawyers will handle the full administration of the estate from start to finish.

The estate lawyers at Cherkowski Marsden LLP in Vernon are extremely knowledgeable with respect to all aspects of estate planning and Will drafting. They have extensive experience drafting countless custom estate plans that range from simple to highly complex. Contact us online or by phone at 250-308-0338 (Vernon office) or 250-803-9171 (Salmon Arm office) to schedule a consultation with one of our lawyers.