CAN YOU REMOVE THE EXECUTOR OF A WILL? IT’S NOT AS EASY AS YOU MAY THINK.Nov 10 2016
It’s a scenario you might have heard about from friends or neighbours. You might have even experienced it yourself. In a Will the deceased appoints an “Executor” to be in charge of his Estate and sets out the beneficiaries who will receive gifts. In some cases, there can be perceived issues with how the executor is executing his duties and/or dealing with the beneficiaries. Can the executor be removed? Yes, but it is not an easy, quick or inexpensive process.
In the eyes of the courts, the executor has been chosen by the will-maker to act on their behalf – to carry out the terms and conditions of their last will and testament. This is not a role that the courts are eager to interfere with. The executor – depending upon the complexity of the will and the estate – could be tasked with handling any number of difficult and time-consuming matters, including collecting estate assets, dealing with claims and tax issues, administering the estate and ensuring distribution of assets. (One option that may help alleviate issues is to name more than one executor in a will. In that situation, to effectively carry out the terms and conditions requires both collaboration and cooperation from all named executors.)
When it comes to the actual execution implementation of the will, some beneficiaries may feel they are being taken advantage of or that the executor is simply not doing his or her job well. They may feel an executor is not acting in the best interests of the deceased person, or is mishandling funds or property. In the vast number of cases, even if there is significant friction or conflict, the courts do not remove an executor as this is viewed as going against the wishes of the deceased person and they would – in effect – be rewriting part of the will. To help move matters forward, the courts prefer to consider other actions be taken instead, such as filing documents, selling property, ordering mediation or imposing deadlines.
So when can an executor be removed? Only when it can be shown that he or she is incapable of performing the tasks required or if they’ve been deemed to be unsuitable would an Executor be disqualified. In these instances, there are two sides that the courts must always consider. For example, if an executor is needlessly spending the estate’s assets, that may be deemed as mismanagement. But if an executor is making investments according to the deceased person’s wishes (which could be against the wishes of the beneficiaries) that may not be viewed as a conflict at all. Ultimately, proving misappropriation, ineligibility or unsuitability can be costly, difficult and challenging.
The decision to remove an executor should only be done after all other options to mediate or resolve issues have been considered. The process involves filing documents with the courts and must be done according to legal requirements set out under provincial estate laws. If you do decide to pursue this action, and before proceeding, you should consider enlisting the services of a professional legal representative.