Removing an Executor – Burke v Burke, 2019

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In Burke v Burke, 2019 BCSC 383 (Burke), the British Columbia Supreme Court reviewed the applicable law and procedures concerning the removal and replacement of an executor and trustee on the application of a beneficiary, under the will of the deceased. The court confirmed the test to be applied on such applications, as summarized by the Supreme Court of Ontario in Johnson v Lanka, 2010 ONSC 4124 (Johnson). When deciding whether to remove an estate trustee, the court will not likely, nor lightly, interfere with the testator’s choice. There must be strong evidence that the trustee’s acts or omissions are of such a nature as to endanger the administration of the trust, and the court’s primary consideration is the welfare of the beneficiaries.

The Applicable Law

Wills, Estates and Succession Act, SBC 2009, c 13:

131     If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:

  • a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
  • a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
  • any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.

132 (1)  Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

(2) The appointment of an administrator under subsection (1) may be

(a)  conditional or unconditional, and

(b)  made for general, special or limited purposes.

Trustee Act, RSBC 1996, c 464:

31    If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

Principles to Consider

In Johnson at paragraph 15, the Court summarized the principles that guide the Court’s discretion to remove estate trustees.

(1) the court will not lightly interfere with the testator’s choice of estate trustee;

(2) clear evidence of necessity is required;

(3) the courts main consideration is the welfare of the beneficiaries; and

(4) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

Applying the Law and Legal Principles

In Burke, the petitioner, a granddaughter of the deceased, applied to have her sister removed as executor of the estate and be replaced by a trust company. Their mother, daughter of the deceased and also a beneficiary under the will, supported the application, while the executor opposed it. The application was brought under sections 131(c) and 132 of the Wills, Estates and Succession Act, section 31 of the Trustee Act and the inherent jurisdiction of the court.

The court found that the executor of the deceased’s estate had a strong prima facie case that the testator intended for her to be the executor, therefore the court should not interfere with that preference lightly, unless there is no other reasonable alternative available. While the petitioner argued that there was a potential conflict of interest which could interfere with the administration of the estate, the court did not find it sufficient to justify the removal of the executor and there were reasonable alternatives to minimize, and even nullify, the potential conflict.


Angela Price-Stephens is an English and Canadian lawyer who has 25 years’ experience as a litigator of complex and challenging claims. Whether you are disinherited, a personal representative contemplating litigation or facing a claim brought by a beneficiary, Angela is here to provide cost effective, practical legal advice.

For more information on this article, or for confidential discussion of your claim, contact Angela Price-Stephens at 250 869 1124, or send her a confidential email at price-stephens@pushormichell.com.