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A person with an interest in the estate can apply to remove an administrator or executor of an estate.1 Most often, this is a beneficiary who is concerned that the estate is not being managed properly or fairly.
Sometimes the reason for removing the personal representative from the estate is simply because they lack capacity to continue acting. In other, often more contentious matters, the personal representative may be failing to administer or settle the estate in a timely manner or may be doing so in a manner that is not reasonable or prudent. In some cases, removal is necessary because it is ultimately in the best interests of the persons interested in the estate.
Courts do not lightly remove an executor, as doing so overrides the will‑maker's choice.
Case law provides helpful guidance on when a court may remove an executor. Some notable decisions include:
In Figley Estate, the executor's conduct showed clear hostility toward his siblings. The Court of Appeal noted "It is difficult to understand how he will be able to fairly and even-handedly administer the estate when he starts from this highly partisan point of approach." 2 He had expressed an intention to "get" his siblings, destroyed records, and tried to deal with estate land before his siblings even knew the contents of the will. The Court ultimately found he lacked the good faith and fidelity required of a trustee.
In Nagy Estate, the Court upheld the removal of the executors not only because they delayed probate for eight years, but also due to concerns about questionable expenses, a conflict of interest, and one executor living in the estate property for years without properly accounting for it. 3 The chambers judge found a breach of section 9 of The Trustee Act, 2009, which prohibits trustees from placing themselves in a conflict or obtaining personal benefit from the trust.4 The judge also noted a broader failure by the executors to properly manage and report estate income and expenses.5
In Hazlehurst Estate, two out of three of the executors were removed because of serious problems with a farmland sale and their plan to distribute the estate in a way that contradicted the will. They pressured the third executor into approving a private sale to a family member for less than fair value, included equipment in that sale that was not part of the agreement, and tried to direct sale proceeds to a beneficiary in a way that could have left the estate unable to cover its debts.6 They also ignored a clear clause in the will requiring a $23,000 loan to be deducted from a beneficiary's share. Their decision to disregard the will's wording and push for a distribution that suited their own interests was enough to justify removal.7
Footnotes
1 The Administration of Estates Act, SS 1998, c A-4.1 s 14.1; Adams Estate v Wilson, 2020 SKCA 38 (CanLII); Figley Estate, 2012 SKCA 36 (CanLII) at para 31, citing from Re Ocean Man Trust (1993), 1993 CanLII 6781 (SKCA).
2 Figley Estate, ibid at para 47.
3 Graves v Nagy, 2024 SKCA 17 (CanLII) at para 10 and 24 [Nagy Estate].
4 The Trustee Act, SS 2009, c T-23.01, s 9; Nagy Estate, ibid at para 37.
5 Nagy Estate, ibid at para 40.
6 Re Hazlehurst Estate, 2007 SKQB 343 (CanLII) at para 9 to 15, 301 Sask R 121 [Hazlehurst Estate].
7 Hazelhurst Estate, ibid at para 18.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
