In a recent blog I wrote about the duties of a Personal Representative (aka executor) in an estate.  What is the consequence if those responsibilities are not carried out, or the administration of the estate is unduly protracted, sometimes taking years to bring to closure (without good reason).  A recent case of the Court of Queen’s Bench of Alberta address just this issue and revisits the test for having a Personal Representative removed.

In Bolster Estate (Re) 2020 ABQB, Justice Lema considers the above issue.  The decision is 37 pages, I will attempt to condense the pertinent points in relation to the facts and test and encourage you to go online to / Alberta / Court of Queen’s Bench / to locate the decision or click here

The dispute is between brother (Brian James Allan Bolster) and sister (Sharon Novosell) concerning their father’s estate (Roy Alfred Bolster).  Ms. Novosell claims that her brother, Brian(I will use Brian to avoid confusion concerning which Mr. Bolster is being referred to), has a conflict of interest in acting as the Personal Representative given that prior to their father’s death he had been transferred land by his father for no consideration.  Ms. Novosell argues that her father continued to have a beneficial interest in the property until his death, her brother takes the position that is not the case and he, after the transfer, was legal and beneficial owner.  Brian also argues that his sister is too late with her argument, and that if she is successful she must post a bond as a Personal Representative from outside of the Province.  Ms. Novosell resides in British Columbia. I will only deal with the test for removal in this blog.

Justice Lema determines that Brian must be removed as Personal Representative and Ms. Novosell will become the Personal Representative, applying the normal rules of the surrogate court in relation to the matter of the bond.

This case was subject to an earlier decision by the court in 2019 ABQB 18  the underlying facts are concisely set out at paragraph 2 of that decision:

[2]Sharon Novosell seeks recourse, via the present action and parallel Surrogate Matter proceedings[1], from her brother Brian Bolster, who she claims obtained title from their father (Roy Bolster), between 1984 and 1989, via no-consideration[2] and possibly questionable transactions, to eleven parcels of land in Alberta.[3] She also contends that Brian may have redirected to himself monies belonging to Roy. The result, according to her, is that, when Roy died in 1990, he left an ostensibly modest estate, apparently depriving her and other siblings, who (with Brian) are residuary beneficiaries to two-thirds of Roy’s estate. (The other third was left to the Roy’s wife (Matilda Bolster), who is the mother of the children).

Ms. Novosell argued (and continues to maintain) that the lands transferred form part of the estate and are held in trust by Brian for the estate.

In the current analysis on the removal matter, Justice Lema provides the standard of proof and factors on the removal of a Personal Representative:

Using the civil standard of proof – on a balance of probabilities, the court must exercise prudence and only remove in cases of “clear necessity and the clearest of evidence that there is no other course to follow” [7 – quoting Re Warren Estate 2015 ABQB 420].

Factors for removal include [7]:

  • Conflict of interest
  • Misconduct
  • Lack of bona fides (not acting in good faith)
  • Inability or unwillingness to carry out the terms of the trust
  • Incapacity
  • Personally benefiting from the trust
  • Acting to the determinant of the beneficiaries,
  • Or any other ground that shows that the Personal Representative is not fit to control another’s property. (Border estate (Re), 2002 ABQB 137, para 27/28)
  • Acting as an applicant and defendant in litigation of the estate

The court acknowledges (through a review of various cases) that it is often the case that a Personal Representative is in conflict.  When someone is named as a representative in a Will, they are likely also a beneficiary under the Will – think child, grandchild, niece or nephew.  The critical concern is whether the conflict is significant enough to impede the representative’s ability to act in the best interest of the estate and pursuant to the Will.  Is the conflict “material or simply theoretical?” [14].

A further review concludes with a finding that indeed Brian is in a conflict of interest that is material to his ability to continue to act as the Personal Representative.  He cannot defend his actions as a beneficiary of an alleged inter vivos gift and uphold the interests of the estate.

It is necessary for every named Personal Representative to carry out their duties in good faith, having the intentions of the deceased continually front of mind, with appropriate and ongoing communications with the beneficiaries.  It is rare for a named Personal Representative to be removed, but not impossible.