Courts may remove or pass over an executor who refuses to resign if the executor has a disabling conflict of interest with the estate. Three recent British Columbia Supreme Court cases demonstrate that an executor’s conflict of interest with an estate can and often does arise out of the executor’s conduct concerning the testator’s property prior to the death of the testator. These cases serve as modern examples of the applicable long-standing legal principles.

Legal framework (as set out in Re Chiu Estate, 2025 BCSC 2196):

The following are the guiding principles upon which a court may remove or pass over an executor:[1]

  • the court will not lightly interfere with the testator’s choice of executor;
  • clear evidence of necessity is required;
  • the welfare of the beneficiaries of the estate is the overriding priority; and
  • the executor’s acts or omissions must be of such a nature as to endanger the administration of the estate.

Since the welfare of the beneficiaries is the overriding priority, and since an executor’s conflict of interest with an estate, whether real or perceived, can impinge on the best interests of the beneficiaries, a conflict of interest is a long-standing basis on which an executor may be passed over or removed. While not all conflicts of interest will warrant passing over or removal, an executor will be passed over or removed when the court finds the conflict to be disabling.

Whether a conflict of interest is disabling will depend on the unique circumstances at hand. Generally, a disabling conflict of interest is one where an executor will be unable to properly discharge their duties because they are required to choose between the welfare of the beneficiaries and their own personal interests. However, that is not the only circumstance that can give rise to a disabling conflict.

The following cases demonstrate various scenarios under which the executor’s conflict was found to be disabling:

Eftekhari v. Eftekhari, 2025 BCSC 942 (Eftekhari):

In this case, a mother had appointed one of her three children to be her executor and left her estate to her three children equally. After the mother’s death, one of the beneficiaries alleged that the executor had a conflict of interest with the estate.

The beneficiary alleged a conflict arising out of the executor’s former position that he and his wife had beneficial ownership over one of the properties that was legally owned by the estate. In relation to this was the executor’s use of $300,000 of estate funds out of the proceeds of the sale of that property to settle a claim that the father (who was left out of the mother’s will) had brought against the executor in his personal capacity. Finally, the beneficiary alleged that the executor was so hostile towards her so as to create a conflict of interest. 

The court agreed and found that the executor having formerly taken the stance that he and his wife had beneficial ownership of the property legally owned by the estate, despite having later abandoned this position, gave rise to a serious enough perceived conflict of interest to warrant his removal.

The executor’s use of $300,000 of estate funds (proceeds of the property that the executor claimed beneficial ownership over) to settle a claim that was brought against him personally was another reason why the executor should be removed, especially in the context of the other conflicts that arose.

Finally, it is rare that the hostility between an executor and beneficiary is so severe that it warrants the executor’s removal by itself. However, the evidence in the decision was that the executor was appallingly hostile towards the beneficiary, even to the extent of having asserted threats of physical violence and sabotage. The court found that the level of hostility and animus in the executor’s behavior toward the beneficiary would have been sufficient by itself to warrant the executor’s removal because it shows that the executor would be unable to act with impartiality and it would likely prevent the proper administration of the estate.

Re Chiu Estate, 2025 BCSC 2196 (Re Chiu):

In this case, a mother had appointed one of her five children as her executor and left her estate to her five children equally. She had also appointed the same daughter as her attorney under an enduring power of attorney. While the mother was alive, the PGT conducted an investigation which identified numerous transactions that would give rise to viable claims by the estate against the attorney, including:

  • approximately $64,000 of estate funds were used within the first four months to personally benefit the attorney and her husband and $875 per month was spent on groceries, despite the deceased having been living in long-term care where there was no need for external groceries;
  • the estate funds were being used to pay for utilities, phone, and cable at the deceased’s home (where the attorney and her husband were living rent-free) despite the deceased having been living in long-term care during that time; and
  • payments for “caregiving” were being made to the attorney, despite the deceased having been living in long-term care during that time.

The PGT concluded that these transactions were to the personal financial benefit of the attorney and her husband and that they were to the deceased’s financial detriment. After this investigation, the PGT was appointed as the committee of the deceased, but the deceased’s will was not updated and the attorney was also the named executor under the will.

One of the beneficiaries brought the application to remove the named executor. The court found that the PGT identified numerous areas where the estate has viable claims against the appointed executor for her former conduct as the deceased’s attorney. The executor of the estate would need to investigate those claims and possibly pursue recovery of property in order to protect the financial interests of the estate. The named executor and her husband would be the subject of those claims and the court held that this amounted to a disabling conflict of interest.

Re Thomson Estate, 2026 BCSC 106 (Re Thomson):

In this case, a mother had appointed her son as her executor and left her estate to her son and daughter equally, with the exception of a cash gift for the son in recognition of his contributions to her business. She had also appointed her son as her attorney under an enduring power of attorney.

While the testator was alive, the son assisted with the sale of her business in his capacity as her attorney. Prior to that, and on his father’s death bed, he had presented an agreement to his parents stating that the son owns 6% of the business, presumably because of his help over the years with that business. Upon the sale of the business, the son deposited 6% of the gross sale proceeds into his own account on the basis of the agreement. Furthermore, the son was a defendant in separate litigation wherein the buyers of the business alleged that he made misrepresentations about the property being sold. 

The court found that the 6% agreement, the limited evidence as to why it was necessary given the gift under the will, and why it was backdated to 1994, as well as the way he paid himself from the gross proceeds of the resort purchase instead of the net proceeds, all gave rise to a perceived conflict similar to the one in Eftekhari sufficient to warrant his removal. Also, if the estate would need to investigate the legitimacy of the 6% agreement, he, being the subject of that investigation, would not be in a position to do it.

Additionally, the son being a defendant in the resort purchase litigation was an actual conflict sufficient to warrant his removal as executor. If he faced personal liability in that litigation and if he were the executor, he could be in a position to foist and apportion the liability against the estate such that it is liable to a greater extent than himself, personally. He would have the power to prefer his own interests to the detriment of the estate.

Section 151 of the Wills, Estates and Succession Act (WESA)

Re Chiu and Re Thomson offer welcome clarification with respect to the role and use of section 151 of the WESA. That section provides a means by which a beneficiary may seek leave of the court to take legal proceedings on behalf of the estate if the executor refuses to do so.

In both cases, the appointed executor asserted that they should not be removed, rather, the beneficiary should use section 151 of the WESA to investigate any claim that the estate has or may have against the appointed executor. In both cases, the court found that section 151 of the WESA is not the preferred mechanism where the executor has a disabling conflict of interest with the estate. While a beneficiary may choose to use section 151 of the WESA if that is their preference, they are free to choose to seek the removal of the executor instead. 

Beneficiaries cannot control conflicts

Eftekhari and Re Chiu also clarify that an executor is not necessarily in a disabling conflict of interest by reason solely that the executor is the subject of a potential claim by the estate. More is required. Evidence of a viable claim, or at minimum, a claim requiring investigation against the executor, as opposed to a mere potential claim, is required. A mere potential claim cannot always amount to a disabling conflict of interest, because if it did, any beneficiary could manufacture a conflict and have the executors disqualified by filing a lawsuit.

Conclusion

Every case where a conflict of interest is asserted requires its own analysis. Generally, these cases show that a very clear indication of a conflict can arise where the executor cannot maximize the value of the estate without personal loss, such as when the executor is the subject of an investigation that the executor would need to undertake, or when the executor is claiming beneficial ownership over property that is legally owned by the estate. These cases also show a recurring theme: the deceased had appointed only one of many children as attorney and executor. Depending on the circumstances, it may be advisable for all of the children to be appointed in these roles so that they can not only share the responsibilities but also so that there is some sort of immediate accountability mechanism which may help avoid the need for beneficiaries to resort to litigation at a later time. 

To learn more about disabling conflicts of interest for executors, or to review conflict issues that may affect an estate administration, contact a member of Miller Thomson’s Private Client Services or Estates and Trusts Litigation team.

[1] Haines v. Haines, 2012 ONSC 1816.