Legal Grounds for Removal of an Executor in Alberta
In Alberta, a personal representative (commonly referred to as an executor when acting under a Will) is tasked with administering the estate of a deceased individual pursuant to the Wills and Succession Act, the Estate Administration Act, and the Surrogate Rules. The role is fiduciary in nature and carries both legislated and common law obligations.
Although the Court is generally reluctant to interfere with a deceased’s choice of executor, they do have the ability to remove an executor where justified. The overarching consideration is whether the individual is administering the estate in a manner consistent with their legal duties and in the best interests of the estate and its beneficiaries.
Below are some of the primary legal grounds upon which an executor may be removed by the Court.
Breach of Fiduciary Duty
Executors owe a fiduciary duty to act honestly, loyally, and in good faith, prioritizing the interests of the estate and its beneficiaries and carrying out the terms of the Will. Grounds for removal arise when an executor acts self-servingly, fails to disclose material information, fails to ensure the best interests of the estate are met, or otherwise violates the trust inherent in the role. This includes diverting assets, self-dealing, making decisions that are clearly detrimental to the estate, failing to carry out the terms of the Will or preferring certain beneficiaries without justification.
Misconduct
Misconduct encompasses actions or omissions that result in financial harm to the estate. Examples include failure to maintain estate assets, inadequate record-keeping, non-payment of debts or taxes, or imprudent investment decisions. Even if there is no intent to defraud, gross negligence or persistent carelessness may be sufficient for removal. Common or explainable mistakes or errors, particularly those without much negative impact, will not be grounds for removal of an executor. The removal of an executor is to ensure the welfare of the estate is preserved, and it is not meant to be punitive in nature.
Conflict of Interest
An executor must remain impartial in their dealings. A conflict of interest that interferes with the executor’s ability to administer the estate fairly and objectively may justify removal. This is especially pertinent and most common where the executor is also a beneficiary and is seen to prioritize their own interests to the detriment of the other beneficiaries.
Incapacity
An executor must have the mental and physical capacity to perform their duties. The Court may intervene if the individual is demonstrably unable to carry out the functions of administration due to age, illness, cognitive decline, or general incompetence in handling financial and legal matters.
Delay or Inaction
Unreasonable delays in commencing or completing administration such as failing to apply for a grant of probate, ignoring creditor claims and liabilities, not filing appropriate taxes or failing to distribute assets can prejudice the rights of beneficiaries. A pattern of inaction or unjustified procrastination may be sufficient for removal, especially if it leads to loss or liabilities for the estate.
Hostility
While interpersonal conflict between an executor and beneficiaries is not, by itself, sufficient to warrant removal, the Court can consider whether hostility has escalated to the point of impairing the proper administration of the estate. If communication has broken down to the extent that administration is materially and substantially affected, removal may be appropriate. However, it is important to note the Court not only accepts but also expects some levels of disagreement and conflict between executors and beneficiaries; therefore, this sort of behaviour alone would not typically warrant removal.
Dishonesty or Criminal Conduct
Any involvement in fraud, theft, or unlawful conduct relating to estate assets or obligations is grounds for immediate removal. This includes knowingly failing to account for assets, falsifying records, or using estate funds for personal purposes.
Final Note
The threshold for removal of an executor in Alberta is high. The law sees the deceased’s appointment of an executor as important as the terms of the Will itself. The Court wants to ensure that the deceased’s wishes are protected in who they chose to administer their estate. The Court will assess each case based on the totality of the circumstances, with the overriding goal of preserving the welfare of the estate and ensuring compliance with the deceased’s intentions.
If you believe an executor or personal representative is acting improperly, legal advice should be sought promptly to assess whether removal is warranted and to protect your interest in the estate. At Vogel LLP, our experienced estate lawyers regularly assist in these types of disputes and are available to guide you through the process.