Removal of Personal Representative

Can a court force the removal of a personal representative?

The court has an inherent jurisdiction to remove and replace a personal representative. Additionally, legislation provides the court with a discretion to appoint any person it considers appropriate in the place of those specifically entitled to administration.

Why would a court remove or replace a personal representative?

Some circumstances where a court would remove or replace a personal representative include the profiting at the expense of the estate, animosity toward the beneficiary, inability of an administrator to enforce compliance with the testator’s wishes, and when an executor challenges the validity of the will.

The court should not act too readily in removing an executor, as overriding a testator’s choice of an executor is a sensitive exercise not to be lightly undertaken. Presumably, the testator has appointed those in whom he or she has confidence to give effect to the testamentary wishes and a court should interfere only where it is clear that the confidence was misplaced.

The overriding duty of the court is to ensure the trust will be properly executed and the main guide is the welfare of the beneficiaries.

The mere fact of conflict or bad personal relations between a beneficiary and a trustee is normally not enough to warrant the removal of a trustee. The relationship between the executor and the beneficiaries must go well beyond mere hard feelings. Hostility between the executor and the beneficiaries must be to the extent that would make it no longer possible for the executor to exercise his or her duties impartially. That is so regardless of the source of the conflict, and reflects the court’s underlying concern with the welfare of the beneficiaries and that the trust be carried out.

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