Estates & Wills & Trusts

Removing executor of a will cannot be done on a whim: Horst

By Tony Poland, AdvocateDaily.com Associate Editor

Removing the executor of a will is a difficult proposition — and for good reason, says Toronto wills and estate lawyer Marlin Horst.

Horst, a partner with Shibley Righton LLP, says it’s not enough for someone to say, “I dislike the fact that a certain person has been named executor.”

“The courts are loathe to remove an executor unless there’s something really seriously wrong with the naming of that person. It’s a fairly high standard,” he tells AdvocateDaily.com. “I think it is a good thing. The courts don’t want to intercede when someone actually gave thought to how they wanted their affairs dealt with after their death.

“The most important thing people should bear in mind is that courts will not generally step in to remove an executor unless there’s some really clear conflict of interest or some undue influence. It has to be pretty strong evidence.”

Pointing to a recent court decision, Horst says successfully arguing for the removal of an executor is a challenge.

In the case, a woman was named the executor of her grandmother’s estate, but her younger sister and mother argued in court that she should be replaced by a trust company because of “an untenable conflict of interest.”

Court was told a woman named her eldest granddaughter executor in 2008, and on June 27, 2018, one month before her passing, she reiterated her wish. The woman called a “family meeting two days later and confirmed her choice, saying her eldest granddaughter ‘had always been there for her.’”

The mother and sister argued a conflict arises out of a separate claim against the granddaughter that they filed under the Wills, Estates and Successions Act (WESA) that states, among other things, that the will made “inadequate provision” for the mother.

Court heard the claim also alleged that prior to her death, the grandmother transferred an interest in a Vancouver property she owned to the granddaughter she named as executor.

However, the court found “the administration of the estate in this case can safely be kept separate from the defence of the WESAclaim, and ruled there was no reason to replace the woman as executor.

“It is very difficult to get somebody removed as an executor because the standards are so high,” Horst says. “Here, for example, there was even a lawsuit, but because that lawsuit was not specifically in respect of the will, the court said this is not a conflict of interest.”

He says it comes down to respecting the wishes of the person who drafted the will.

“If someone put their mind to it and says, ‘I want this person to be the executor,’ the courts are going to sit back and say, ‘This person gave some thought to this, we’re going to abide by their wishes unless there is something seriously wrong with the choice they made.’”

To Read More Marlin Horst Posts Click Here