1. Introduction

I have written several times about the removal of trustees, executors and administrators, and passing over of named executors and trustees.[1] Such cases are now a regular occurrence. Scott v Scott[2] is a recent one.

2. Facts

The testator, John Scott, made his last Will in 2016. In it he named his wife, Kay, to whom he had been married for 30 years, executor and his two daughters of a prior marriage, Kathleen and Victoria, as substitute executors. John gave Kay the contents of the house where they lived and a life interest in the house. She vacated the house in 2018 but was entitled to the money in a bank account held jointly with John, and to benefits under a pension plan. Kay made an application for probate but withdrew it and renounced her right to be appointed executor. Kathleen then made an application for probate and appointment as sole executor of John’s estate. Victoria opposed the application, sought probate, appointment of herself as sole executor, and removal of Kathleen. Victoria argued that the will should be proved in solemn form because John’s death was suspicious since he changed his will one month before his death and made gifts to Kay in the revised will, and because she alleged that John and Kay may never have been married and there was no proof that they were married.

The application judge, applying the standard of evidence required for proof in solemn form in Vout v Hay[3] concluded that Victoria’s allegations did not come close to meeting that standard and failed to demonstrate suspicious circumstances about the preparation of the will, call into question the testator’s capacity, or show that the testator’s will was overborne by undue influence or fraud. He also found that John would have known the facts of Kay’s first marriage, and that there was no evidence that John was married to another person when he died. Thus, he granted Kathleen’s application, granted probate to her, named her sole executor, and removed Kathleen as executor. Kathleen appealed.

3. Analysis and Judgment

The Court of Appeal dismissed Victoria’s appeal. It agreed that whether the legal steps of divorce and marriage had been completed were irrelevant. Similarly Victoria’s submission that John was misled about Kay’s marital status was of no consequence. They had lived together for many years, and he was free to dispose of his estate as he wished, including making bequests and gifts to Kay. Thus, the application judge did not err in concluding that John had testamentary capacity, that he knew and approved the contents of the will, and that there were no suspicious circumstances to call the validity of the will into question.

On the issue of the appointment of the executor, the Court went back, as most cases involving removing executors do, to the locus classicus on this issue, Letterstedt v Broers.[4] In that case Lord Blackburn pointed out that the main criterion for considering removal is the welfare of the beneficiaries.[5] And this principle has consistently guided Canadian courts. The application judge also followed it. He concluded that Kathleen’s failure to pay for insurance and taxes and her removal of some items from John’s film and book collection without Victoria’s consent were insufficient reasons to remove Kathleen as executor. However, with respect to Victoria’s removal as executor the application judge concluded that her lack of intention and will to carry out the trusts in John’s Will justified her removal. In those circumstances she would not be acting in the interests and welfare of the beneficiaries. In support of this conclusion, he noted that Victoria would pursue her own theories that an international conspiracy was targeting the family, and that her sister and stepmother were police agents. This would delay the administration of the estate to the detriment of the beneficiaries. Further, there was no evidence to support Victoria’s theories, and even if they were true, they were irrelevant to the administration of John’s estate. Moreover, Victoria’s pursuit of the theories had paralysed the estate administration for the past five years.

The Court of Appeal agreed with the reasons of the application judge and agreed that he made no error in removing Victoria as executor.

In paragraph 16 the Court of Appeal reproduced an interesting passage from Letterstedt where[6] Lord Blackburn quoted the following passage from Story’s Equity Jurisprudence:[7]

But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.

This passage is not often mentioned in the cases, but the Court of Appeal returned to it in paragraph 24 when it noted that the application judge’s reasoning and conclusion accorded with Story’s identification of ‘want of reasonable fidelity’ as a justification for removing Victoria as executor, since she lacked the will or intention to administer the trusts imposed by John’s Will.  I mention this because the phrase ‘want of reasonable fidelity’ is convenient shorthand, at least in some cases, to support the removal of an executor or any other fiduciary.

With respect to costs, the application judge ordered that Victoria should bear her own costs, while Kathleen should receive her costs out of the estate. However, the Court of Appeal held that the issues concerning who should be appointed executor were issues of substance that arose under the will and therefore, both at first instance and on the appeal, the costs of both parties should be paid out of the estate. However, Kathleen should be paid her costs on a solicitor and client basis.

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[1]    See https://welpartners.com/blog/2021/05/when-should-the-court-remove-a-co-executor/; https://welpartners.com/blog/2021/08/removal-of-trustee-for-inappropriate-use-of-discretion/; https://welpartners.com/blog/2022/01/removal-of-trustees-for-unreasonable-conduct/; and https://welpartners.com/blog/2023/02/removal-and-passing-over-of-executors-and-administrators/.

[2]    2022 NLCA 61.

[3]    [1995] 2 SCR 876, paras 25-26.

[4]    (1884), LR 9 App Cas 371 (PC, South Africa).

[5]    Ibid. p 387.

[6]    Ibid., at 385.

[7]    Joseph Story, Commentary on Equity Jurisprudence in England and America (London: Stevens and Haynes, 1884), §1287 (emphasis supplied).