How The Court Views A Request To Have An Executor Removed

When someone requests the removal of an executor, the court approaches the case from the perspective that these are not business people fighting with one another, this is family.

Judges would prefer that it be settled among the family, not in the court system. If it comes to court, a judge will balance the wishes of the testator as against the practical implications of implementing those wishes. For example, an executor’s material breaches of his/her fiduciary duty – like theft- would likely result in their removal. However, there are instances where one could argue that the executor has not done anything so bad, but a judge would still remove him or her. It really depends on the facts of the case and the personalities involved.

There are a line of cases where executors have been removed when there was such an antagonism between two executors or between an executor and beneficiary such that the executor could not exercise his discretion dispassionately or effectively. In these circumstances the courts have not cared who was at fault and they removed the executors.. There are other situations in which the court will say: we are loath to interfere with the choice of the executor by the deceased, and he chose Mr. Smith. But if all the beneficiaries are of age, and all are capable, and they join together and say “We want Mr. Smith out,” the court is more likely to remove Mr. Smith from the position of executor. If all the beneficiaries agree, and they are all of age, they can collapse the whole trust. Every decision depends on the specific facts of the case.

Readers often see articles like this and believe their fact situation mirrors the ones discussed and mistakenly conclude that litigation may or may not be warranted. The appropriate remedy may not be the removal of an executor, but to seek an accounting or (if possible) to wind up the trust. I caution all those who are embroiled in difficulties with executors not to treat this short piece as legal advice, but to seek out competent legal counsel who can review their specific fact situation.

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This article is taken from a April 30, 2008 interview with Charles B. Wagner. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.