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]

Removing an executor or administrator from an estate depends heavily on the specific circumstances of each case. For additional details about executor removals or other disputed estate issues, reach out to Paige E. Van de Sype or visit our Estate Litigation webpage to learn more. Additional information may be found of our Wills, Trusts, Estate Planning and Estate Administration webpage.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.

For more information relating to contentious estate issues, please view the related blog posts:

Estate Litigation: Who Can Contest a Will?

Setting Aside a Will: Incapacity or Undue Influence

Dependant’s Relief Legislation: What to do when your inheritance from a deceased parent or spouse is inadequate to meet your needs?

Estate Litigation: Family Property Rights for the Living Spouse

Why a Lawyer-Prepared Will is Important

Dying Without a Will (Intestate)

About the Author:

Paige E. Van de Sype is an associate at the Saskatoon office with a practice dedicated to estate litigation as well as both contentious and non-contentious estate administration. Her areas of focus include power of attorney disputes and oversight, and guardianship appointments and challenges. Paige is committed to ensuring that individuals have clear, accessible information regarding potential claims.

About McKercher LLP:

For 100 years, McKercher LLP has grown deep roots across Saskatchewan, serving the community from offices in Saskatoon and Regina. Now, as one of the province’s largest and most established full-service law firms, we proudly carry on this legacy – following a client-first philosophy as we provide legal services and real solutions for the people who rely on us.