Widow Transferred Vancouver Home Into Her Name - Subsequently Removed as Executor Due to Conflict of Interest

(Re) Yeh Estate, 2016 BCSC 1550

The petitioners, the sons of the deceased, applied to remove the executor and trustee under the last will of their father.  With their application, they also sought an order appointing them as executors and trustees in substitution of the respondent.  The respondent, the widow, sought a number of orders. 

Briefly, some notable facts of the case were as follows: 

The deceased had purchased property in North Vancouver (the Property) on January 27, 2015 and married the respondent August 25, 2015.  In November of 2015, the deceased learned he had inoperable and advanced colon cancer and subsequently made efforts to settle his affairs.  On December 31, 2015 the deceased executed his will, which bequeathed the Property to his sons, the petitioners.  The residue of the estate was to go to the respondent.  The will detailed the respondent, his wife, as executor and trustee of his estate.  The petitioners were named jointly as alternative executors.  The deceased executed a power of attorney appointing the respondent and registered it with the land title office. 

The respondent, using the power of attorney, transferred the property to her daughter the day before the deceased died.  The daughter then transferred the property back to the respondent and this transfer was registered at the land title office. 

The petitioners alleged the respondent, through her power of attorney, took the Property from the estate and caused it to be registered in her name.  They submitted she is holding the Property in trust for the estate.

Decision

The court isolated the issue and deferred much of the orders sought to the very likely subsequent litigation.

Due to the fact the respondent, the executor (widow), was taking the position the will should not be enforced as it reads on its face, it put the respondent in a fundamental conflict of interest.  The court found her position in the dispute (certainly in regards to the Property) was squarely at odds with her role as executor to administer the will. 

Accordingly, the court granted the respondent’s application to remove her. 

The court also appointed the petitioners, the deceased’s sons, as the executors in place of the respondent.  The court did note that this may seem problematic, but their personal interests were not incongruent with the deceased’s stated wishes and the court did not see any reason to doubt their duty to maintain the will.

While the court did not grant an order vesting the Property in the petitioners (as it was no longer part of the estate) the court provided a proviso:  there shall be no transaction regarding the Property by any party unless there is either agreement between the parties or the Court’s approval has been sought and obtained in advance.  

Removing the respondent as executor

[15]        In my view, the petitioners’ contention that the respondent should not be permitted to continue as executor and trustee is sound. 

[16]        I have reviewed the authorities provided by counsel on this issue. It is clear that this Court has a broad discretion—both through its inherent jurisdiction and under s. 31 of the Trustee Act, R.S.B.C. 1996, c. 464—to remove an executor or trustee where a conflict of interest exists: see Mardesic v. Vukovich Estate (1988), 1988 CanLII 3125 (BC SC), 30 B.C.L.R. (2d) 170, at 173–74 (S.C.).

[17]        The main consideration in whether to exercise that discretion is the welfare of the beneficiaries: Thomasson Estate (Re), 2011 BCSC 481 (CanLII), at para. 22. Even a “perceived” conflict of interest between an executor’s personal interests and her duty to act in the interests of the beneficiaries of the will can be sufficient to warrant her removal: Ching Estate (Re), 2016 BCSC 1111 (CanLII), at para. 22.

[18]        The respondent’s essential position here is that the will should not be enforced as it reads on its face—that is, that the deceased’s interest in the Property (as it was prior to the transfers) should not pass to the petitioners.

[19]        That puts the respondent in a fundamental conflict of interest. Her position in this dispute (certainly as regards the Property) is squarely at odds with her role as executor to administer the will.

[20]        Accordingly, I will grant the petitioners’ application to remove her.

[21]        As for the matter of whom should be appointed in her place, I note that the deceased, in his will, has directed that if the respondent does not act, then his sons, the petitioners, should act.

[22]        On one hand, that may seem problematic in that they are obviously implicated in the dispute. However, their personal interests are not incongruent with the deceased's stated wishes. They say they will act to maintain the will. I see no reason to doubt that.

[23]        Accordingly, I will appoint the petitioners to act as executors and trustees.

[24]        Turning to the petitioners’ request to vest all assets in the estate in themselves, I believe that order to be unnecessary. An executor, in common law, obtains title to the estate’s assets from the will: Browne v. Brown Estate, 2015 BCSC 28 (CanLII), at para. 22. Further, s. 102(2) of WESA provides:

Vesting of property on death

102 …

(2) The estate of a deceased person vests in the person's personal representative when the personal representative assumes or is appointed to that office.

[25]        Therefore, by virtue of my order that the petitioners be appointed to act as executors and trustees of the deceased’s estate, the assets of the estate necessarily vest in them.

[26]        That will not, of course, vest any interest in the Property in the petitioners as it is no longer part of the estate. Further, an order as sought by the petitioners that that Property be transferred back into the name of the estate, or that the respondent holds the Property in trust for the estate, would require an analysis that is far beyond the scope of this petition. There will, however, be a proviso: there shall be no transaction regarding the Property by any party unless there is either agreement between the parties or the Court’s approval has been sought and obtained in advance.

[27]        My expectation is that substantive litigation will be initiated with respect to the dispute at bar. Specifically, I would anticipate that the respondent will commence an action. With that in mind, I turn to the respondent’s application.

The respondent’s application

[28]        In the respondent’s application, the Court was asked to make a number of orders to enable the respondent to pursue discovery or, alternatively, convert the petition to an action. I decline to do so.

[29]        With regard to measures of further discovery, those seem to me to be essentially incremental and much less than the situation calls for. I am reminded of the comments of Ballance J. in Boffo Developments (Jewel 2) Ltd. v. Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701 (CanLII), at para. 50:

[50]      … [T]he Court ought to be cautious in making orders which have the objective of addressing the resolution of a bona fide triable issue through the creation of a hybrid proceeding that permits certain pre-trial and trial mechanisms to the parties, but denies them others. Where the driving underpinning for such an approach is largely one of practicality, it strikes me there is a very real risk of diminishing returns where the summary process is expanded to allow the filing of additional lengthy affidavits, cross-examination on affidavits and possibly a broader scope of cross-examination, selective document disclosure, and other features of the trial process. At some point, the process that looks like a trial, should be a trial.

[30]        As for the alternative remedy sought, I am not persuaded that the issues at hand, as they arise from the petition, lend themselves to that being done. In my opinion, the subject of this petition differs from what would ultimately be at issue in the trial the respondent seeks. Essentially, the relief the respondent seeks is a variation of the terms of the deceased’s will. That is not at issue here, where the petitioners seek the removal of Ms. Syukur as executor of the estate.

[31]        The better approach is to have the respondent commence an action.

[32]        Given the seriousness and importance of the issues, I expect that will be done in an expedited manner. To that end, I will direct that any action to be brought by the respondent should be commenced no later than 60 days from the date of release of these reasons. In the event there has been no action commenced, the petitioners are at liberty to bring the matter back before this Court for further directions.