Removing a Personal Representative

A Personal Representative (PR), or Executor, is the person you appoint in your Last Will and Testament to administer your estate and ultimately distribute assets in accordance to your final wishes. But what happens if they fail to do their duties in a fair and impartial manner? What if they are incompetent or there is proof that they are defrauding the estate? There are many reasons why you might want a PR removed. However, such a move should not be taken lightly. Our experienced lawyers can explain your options and help guide you through the process.

What is a Personal Representative?

Your assets and debts become part of your estate when you die. After your debts have been paid any assets remaining will be distributed to your beneficiaries, and that’s where a Personal Representative comes in.

A PR has a duty to the beneficiaries of the estate to, among other things:

fairly and even-handedly administer the estate;
realize estate assets in a timely manner;
respond to queries from beneficiaries; and
account to the beneficiaries.

A Personal Representative Must Be Fair and Neutral

A PR must remain impartial and act as amicus, or friend, to the Court. They should not take a position that benefits one beneficiary to the detriment of another. A Personal Representative’s decisions must balance all beneficiaries’ interests, and avoid favouring one over another.

A PR must not have a personal interest that conflicts, or may conflict, with the interests of the estate and its beneficiaries. They must also be indifferent to the outcome of any legal proceedings involving the estate.

If competing interests do arise between beneficiaries, a Personal Representative must seek the Court’s direction. This is imperative, especially in situations where the PR stands to personally benefit from a position taken in their capacity.

What if a Personal Representative is Not Being Fair?

If a Personal Representative fails to act in the best interests of the beneficiaries to such an extent that the welfare of the beneficiaries is at risk, they can be removed by the Court.

Generally, it is the beneficiaries who apply to have the PR removed. You cannot have a PR removed simply because you disagree with them. Courts will strive to respect the final wishes of the deceased so there must be sufficient grounds, which is why you should seek legal advice to determine if you have a legitimate case.

If a judge agrees that the Personal Representative has failed in their duties, or that removal is in the best interests of the estate, the Court will appoint a replacement.

What are Reasons to Remove a Personal Representative?

The guiding principles for removal are summarized in the 2015 Court of Queen’s Bench of Alberta decision Warren Estate (Re).

“The historical factors which a court was required to consider when appointing an administrator should be considered on an application for removal, including conflict of interest, misconduct, lack of bona fides, an inability or unwillingness to carry out the terms of the trust, incapacity, personally benefiting from the trust, acting to the detriment of beneficiaries, or any other ground that shows that the trustee is not fit to control another’s property,” the Court wrote.

“Troubling conduct includes failure to take steps that concern the assets comprising the estate, such as providing an accounting … Such conduct may lead the court to conclude that the executor will be unable to fairly and even-handedly administer the estate, as it demonstrates a want of proper capacity to execute the duties, or a want of reasonable fidelity justifying removal.”

We Can Assist You

If you are a beneficiary or an interested person of an estate and believe the conduct of the Personal Representative warrants their removal and would like further information on your rights, please contact us. We can also assist If you are a personal representative seeking to defend an application for your removal.

Initial consultations are free of charge.