Executor Removal vs. Section 151 of WESA: Navigating the Two Remedies for Executor Conflict in BC Estates

In the context of estate administration, an executor’s principal obligation is to act in the best interests of the beneficiaries and to safeguard the assets of the estate.  Yet, at times, an executor may find themselves in a conflict of interest that impinges on their ability to carry out this obligation.  For example, an executor may be reluctant to commence a claim on behalf of an estate to recover a debt, if the executor personally is the debtor.  Similarly, an executor may not wish to commence a claim where they view it as spurious or too costly.

In British Columbia, when such a conflict arises, a beneficiary may apply to court under the Wills Estates and Administration Act (WESA) to have the executor removed and substituted for a more suitable party.  In determining whether or not to remove an executor, the court’s main consideration is the welfare of the beneficiaries.  

However, executor removal is not always the best tool under WESA to manage an executor conflict.  Under section 151 of WESA, a beneficiary may also apply to court for leave (permission) to commence a claim on behalf of the estate against a third party, including an executor in their personal capacity.  By using section 151, the original executor remains in place for all other matters, but the beneficiary takes charge of the claim which placed the executor in a conflict or where the original executor will not otherwise be pursuing the claim. 

However, the availability of a remedy under section 151 does not mean that executor removal is never an option.  In a recent decision from the BC Supreme Court, Chiu Estate (Re), 2025 BCSC 2196 [Chiu Estate], the court confirmed that section 151 of WESA does not replace the right of a beneficiary to seek the removal of an executor who is in a disabling conflict of interest.  Rather, section 151 provides what is sometimes a more convenient and less expensive path to pursuing claims on behalf of the estate where it is in the best interests of the estate to do so.  By extension, an executor in conflict cannot rely on the availably of section 151 to shield them from potential removal.

In Chiu Estate, one daughter (Ms. Chiu) applied to court to pass over her sister (Mrs. Li) and her sister’s husband (Mr. Li) as the named executor and alternate executor of the will and trustee of the estate of their mother (the Deceased) on the basis that both were in a disabling conflict of interest.

The conflict arose during the Deceased’s lifetime, when Mrs. Li acted as the Deceased’s attorney through an enduring power of attorney.  During the last years of the Deceased’s life, her children were embroiled in conflict, particularly as it related to Mr. and Mrs. Li’s care of the Deceased.  Ms. Chiu and her other siblings had serious concerns that the Lis were financially exploiting the Deceased for their personal benefit and were doing so while the Deceased lack sufficient mental capacity.  At Ms. Chiu’s insistence, the Public Guardian and Trustee of British Columbia (the PGT) was ultimately appointed as the Deceased’s committee during her lifetime, thereby ousting Mrs. Li’s authority as the Deceased’s attorney.  In the course of the PGT’s investigation, they found that the Lis had engaged in a series of transactions using the Deceased’s funds which were directly for their own benefit and to the objective financial detriment of the Deceased.

Following the Deceased’s death, Mrs. Li became the executor of the Deceased’s will.  Given the conflict Ms. Li was in, Ms. Chiu applied to court to pass over the Lis as the named executor and alternate executor.  One of Mrs. Li’s central arguments in defending the application was that her removal as executor was unnecessary in the circumstances given the ability for Mrs. Chiu to proceed under section 151 of WESA instead. 

The Court disagreed with Mrs. Li’s argument, finding that section 151 is a remedial tool that provides beneficiaries with a mechanism, as an alternative to executor removal, for resolving a conflict of interest where the estate has a legitimate claim that the executor fails to pursue, despite it being in the best interests of the beneficiaries.  Section 151 does not, however, take away other rights that exist at common law and under WESA—including the right of beneficiaries to seek the removal of executors in disabling conflicts of interest.  Madam Justice Francis clarified in this decision that that the common law—which imposes on executors a duty to put the interests of the estate above their own personal interests—has not been abrogated by section 151.

The key takeaway from Chiu Estate is that section 151 of WESA is a tool to manage discrete claims an estate may have, including where an executor is in a conflict.  A section 151 remedy stands as an alternative to an executor’s removal, not a replacement.  Beneficiaries remain entitled, under both the common law and WESA, to apply for the removal of an executor who may be in a disabling conflict of interest with respect to an estate.  Deciding whether to pursue the removal of an executor or an application under section 151 will depend largely on the circumstances of the particular estate and the nature of the conflict of interest at issue.  However, the Chiu Estate decision is an important reminder for litigants that that the law entitles them to both avenues of relief.