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case law review- executor removal
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Removal of an Executor

Anecdotally, it appears that a rising number of court cases involve beneficiaries or co-trustees trying to remove a “rogue” executor. It is clear from a review of the case law and secondary authorities that the courts have the authority to order the removal of executors, but the challenge is to determine when they will exercise that authority.

The case law establishes a long list of factors that the courts will consider in determining whether to remove an executor. Generally, no one factor is determinative, but it always seems to boil down to one question – is it in the best interests of the estate and the beneficiaries for the executor to be removed? When judges remove executors, it’s because that question is answered in the affirmative.

There is a volume of these cases, but our associates have written blogs on several of the more interesting ones highlighting the factors relied on by the court to justify the removal of executors. For those seeking an introduction or review of the topic, these blogs make an interesting read:

Conflict Of Interest

Do Conflicts of Interest warrant removal of an Executor?

A conflict of interest does not automatically result in the removal of an executor. A review of the case law and secondary authorities paints a coherent picture and legal baseline. For an Ontario judge to remove an executor on account of a conflict of interest s/he must be convinced that the removal is in the best interests of the estate.
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Disagreement Executors

Does friction between co-executors warrant removal?

The friction between Peter and Michael was long standing and intense. While the reported case does not specifically say so it appears that the arguments over their mother’s investments was just another platform of expression for their mutual animus. While Peter may have been the executor of his grandfather’s estate Michael was his mother’s litigation guardian.
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Evidence

Can a trustee be removed without evidence of bad behaviour?

It is reasonably easy to imagine many of the possible reasons for which a trustee or executor may be removed from their position by the Court. Perhaps he appropriated trust property for his own benefit, delayed in taking the steps necessary to administer the trust or estate, failed to account for trust property, or was otherwise clearly incompetent in the role.
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Removing an Executor: Delay & Non-Action

In Kajaks Estate, the deceased named his stepson as executor. There were no distributions for eight years. At that point, pursuant to a court application, the executor was ordered to make interim distributions of $100,000 to each of the applicants. While the residuary beneficiary received an interim distribution, the applicants did not. The applicants went back to court and sought to find the executor in contempt of the previous order and to remove him for delay.
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Gregory Sidlofsky and Charles Wagner

The authors of this blog are Gregory Sidlofsky and Charles Wagner. Gregory is a Certified Specialist in Litigation by The Law Society of Upper Canada and partner at Wagner Sidlofsky LLP. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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