Coquitlam Wills Lawyer: No Will - Then Who Should Administer One’s Estate?
When an induvial passes away without a Will, it is left to the remaining family to appoint an administer of the estate. Often, this decision ensures that the estate is looked over responsibly and things move forward without cause or concern.
In some instances, however, trouble and issues arise. A recent example of this is the case of Pangalia Estate, 2021 BCSC 1070; in this case, the Deceased died in November 2016. She was survived by eight adult children. Two of her sons were appointed at the Co-Administrators of the estate (Brother A and Brother B). Each son brought an application to the BC Supreme Court to have the other removed from as administrator.
Brother A alleged the following:
Brother B was not acting in the best interests of the estate.
Brother B had refused to sign authorizations with financial institutions to allow the co-administrators to discover and investigate the joint accounts held by their mother.
Brother A believed that his mother held joint accounts with one or more of his siblings and that Brother B was acting to ensure that the surviving joint account holders receive the funds in those accounts themselves rather than the funds being accounted for in their mother's estate; and that
Brother B had refused to take steps to administer the estate.
In response, Brother B alleged the following:
Brother A had a conflict of interest;
The conflict was a $50,000 debt that one of the camps alleges Brother B owed to his mother.
Brother A asserted the debt was settled years before his mother's death but does not have documentary evidence of its satisfaction.
Brother B also claimed other misconduct on Brother A's part, including violence towards some of the other siblings and dishonesty regarding his dealings with their estranged father.
Ultimately, the Court decided that neither son could be trusted to administer the estate. Instead, the Court appointed a lawyer to be the administer; although the lawyer would not be a beneficiary, he could charge the estate for his time.
Read the Case
In this case, Madam Justice Matthews also substantively reviewed the law on this matter as follows:
[19] Both parties agree that s. 158 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, is the basis for the court's jurisdiction to remove an administrator of an estate. It reads as follows:
Application to remove or pass over personal representative
158 (1) In this section, "pass over" means to grant probate or administration to a person who has less priority than another person to become a personal representative.
(2) A person having an interest in an estate may apply to the court to remove or pass over a person otherwise entitled to be or to become a personal representative.
(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove or pass over a person otherwise entitled to be or to become a personal representative if the court considers that the personal representative or person entitled to become the personal representative should not continue in office or be granted probate or administration, including, without limitation, if the personal representative or person entitled to become the personal representative, as the case may be,
(a) refuses to accept the office of or to act as personal representative without renouncing the office,
(b) is incapable of managing his or her own affairs,
(c) purports to resign from the office of personal representative,
(d) being a corporation, is dissolved or is in liquidation other than a voluntary dissolution or liquidation for the purpose of amalgamation or reorganization,
(e) has been convicted of an offence involving dishonesty, is an undischarged bankrupt,
(f) is
(i) unable to make the decisions necessary to discharge the office of personal representative,
(ii) not responsive, or
(iii) otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative,
to an extent that the conduct of the personal representative hampers the efficient administration of the estate, or
(g) a person granted power over financial affairs under the Patients Property Act.
(3.1) A creditor may make an application for an order under subsection (3) (e) or (e.1) only if the creditor has a claim for more than a prescribed amount.
(4) An order of the court removing a personal representative does not remove that person as a trustee.
[20] In Dirnberger Estate, 2016 BCSC 439, at paragraph 11, citing Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.), the court set out four factors to be considered on an application for removal of an executor or administrator:
endangerment of trust property;
want of honesty;
want of the proper capacity to execute the duties; and
want of reasonable fidelity.
[21] In Edwards Estate (Re), 2019 BCSC 858, I considered s. 158 of the Wills, Estates and Succession Act on an application to remove the executor of an estate. I granted the application because the executor was not able to deal civilly with his sister and he demonstrated tendencies to treat her unfairly that amounted to lack of fidelity sufficient to remove him as an executor. I found that his removal was also justified by his failure to take steps to deal with the estate's assets in accordance with his duties as an executor, particularly much of his time and effort was spent fighting with his sister rather than fulfilling his duties as an executor. These considerations apply equally to administrators as executors.
[22] In Hall v. Hall (1983), 45 B.C.L.R. 154 (S.C.), Madam Justice Proudfoot held that conflict of interest and a conflict of duty demonstrate want of fidelity. Where there is an actual conflict of interest, the assets of the estate may well be endangered or impaired and in such circumstances, removal of the administrator is necessary to safeguard the integrity of the estate.
…[56]In Levi‑Bandel v. McKeen, 2011 BCSC 247, Mr. Justice Butler, then of this court, held that where the administration of an estate has “been brought to a standstill by the inability of co‑executrixes to carry out their duties, it is imperative that the court act to resolve the stalemate for the benefit of the beneficiaries.” I have concluded that the administration of this estate cannot move forward because the two administrators are intractably opposed to one another over most things that have to do with their late mother and her estate, as are the two camps of the family. In my view, this administration of this estate will not conclude, and the assets of the estate will be consumed by the costs of this warfare unless both administrators are removed and a neutral administrator appointed.
…[61] The administration of the estate has ground to a standstill not only because of the actions of the co-administrators but also because of the widespread rancour and discord among the siblings. Given the long-standing feuds between the two camps of siblings, I am of the view that no member of this family can move this estate administration to a conclusion without continuing litigation, which would only further dissipate the assets of the estate. I conclude that despite the expense, the only means to move the administration of the estate to its conclusion is to appoint a neutral administrator.
[62] Section 159 of the Wills, Estates and Succession Act both requires and empowers the court to appoint a replacement when it removes a personal representative unless certain circumstances apply:
Appointment of substitute personal representative
159 (1) If the court discharges or removes a personal representative, the court
(a) must appoint another person who consents to act as the substitute personal representative, unless
(i) the administration of the estate is complete, or
(ii) the court does not consider a new appointment necessary, and
(b) may, if the personal representative has resigned or is removed as a trustee, concurrently appoint the person referred to in paragraph (a) as trustee under the Trustee Act in place of the trustee being discharged or removed.
(2) The court may require a substitute personal representative under subsection (1) to provide security if security is required by the Supreme Court Civil Rules.
(3) A substitute personal representative appointed under subsection (1)
(a) has the same authority that the former personal representative had in respect of the estate,
(b) must perform the same duties and is subject to the same obligations as were imposed by law on the former personal representative, and
(c) on application without notice, is entitled to receive a grant of probate or administration, as the case may be, without the return of the previous grant if the court is satisfied that the return of the previous grant would be impossible or impractical.
(4) A grant of probate or administration to a former personal representative is revoked on the appointment of a substitute personal representative.
…[63] The exceptions in s. 159(1)(a) do not apply here. The appointment of a replacement is necessary since I am ordering the removal of the two existing administrators of the estate and the estate has not reached its conclusion. Moreover, reading s. 159 in a broader context confirms that the Wills, Estates and Succession Act does not contemplate a scenario where the existing administrators of the estate are removed, and a replacement is not appointed at the same time: see Wills, Estates and Succession Act ss. 102, 135, 136, 159(4), and 160(2).