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Thursday, May 27, 2021

Court adds a trust company as third executor when co-executors can't get along

All lawyers who do estate work are approached by clients who are co-executors who can't get along with the other executor. This happens most frequently with siblings but in reality it could be any combination of people. Usually the question I'm asked is how to remove the other co-executor. Often, at the same time, that other co-executor is meeting with a lawyer of his own to ask how to get rid of the one who is consulting me.

As I've blogged about before, removing an executor is not an easy thing to do. Just the fact that the two of you can't get along may is not likely reason enough for you to get rid of the person who you feel should be removed. In my experience, when two co-executors can't get along and the estate administration is suffering because of it, a judge is not likely to choose between the two of them. This is assuming that neither co-executor has done something criminal or terrible to the estate.

So if the two co-executors cannot seem to work together and the judge won't choose between them, what happens? In many cases, the judge will remove both of the co-executors and appoint the Office of the Public Trustee to be the executor.

I have recently read a blog post by James Zaitsoff, a lawyer who blogs at BC Estate Litigation Blog (which I highly recommend to BC readers of this blog). Mr. Zaitsoff was talking about a new BC case in which the co-executors couldn't get along and each of them applied to the court to have the other removed. There was a litany of complaints on both sides. In addition to the administration of the estate, there was also a trust set up for a brother of theirs who was disabled. 

In this case, the judge did not remove either executor. But he did add a trust company as a third executor and trustee and a requirement that decisions were to be made by majority, rather than unanimously. The judge said that would work out so that if one of the brothers really was being as unreasonable as they were accused of being, he would be outvoted by the majority. Click here to read the post, which has more detail about the case.

It's interesting to note that in this case, the two co-executors did not agree that the trust company should be added as a co-executor. They did agree that the trust company should be added to the trust for their brother, but not for the estate itself. However, the judge did what he thought was best for the estate. This was an outcome that neither of them had asked for.

I like the decision, because the judge upheld the wishes of the deceased that the two brothers act as co-executors, but he also found a practical solution to the problem of lack of cooperation. I always tell clients that once they put their case in the hands of the court, they have lost control of what may happen. This case is a good example of that.


  1. Lynne,
    This is assuming that neither co-executor has done something criminal or terrible to the estate.[LB....]
    Lynne, could you please expand on the 'something criminal'?
    Thanks Webeye

    1. Some examples might be theft from the estate, intentional destruction of estate property, perpetrating fraud in order to gain access to assets, forging signatures, etc.

      It's not often that estate activities spill over into criminal law, but it does happen on occasion.


  2. I am a childless third wife of a man with two adult sons who are the executors to his estate. If my husband changes the ownership of our matrimonial home from joint to tenants in common, could his sons move into my home and occupy it after their father dies without my consent?

    1. Almost every province has special protection for the matrimonial home to prevent exactly that sort of thing from happening. Which province are you in?



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