In the recent case of Alvaro v. Alvaro, 2025 BCCA 386, the British Columbia Court of Appeal (the “BC Court of Appeal”) ruled that a chambers judge had not erred when ordering the appointment of a professional trustee over the deceased’s estate, despite the fact that this relief had not been requested in the Application.
Pursuant to the deceased’s last will, Respondent P was named as executor and trustee and Respondent M was named as the alternate. Appellants J and K had commenced an Application seeking relief that P be removed, M passed over, and J appointed as the personal representative. The chambers judge allowed the Application in part, ordering that P be removed and M passed over due to conflict. However, the chambers judge further declined to order the relief the Appellants were seeking and instead directed the appointment of an independent professional trustee and established a procedure for their selection.
On appeal, the BC Court of Appeal addressed the following four questions:
1. Did the Chambers Judge Err by Not Prioritizing the Welfare of the Beneficiaries as the Paramount Consideration in Appointing an Alternate Personal Representative?
The Court disagreed with the Appellants’ submission that the welfare of the beneficiaries is the “paramount and overriding consideration.” Rather, following Klassen v. Cornies, 2023 BCCA 420, the welfare of the beneficiaries is a “main guide” that considers other, concurrent guiding principles. It is not the sole and overriding consideration.
2. Did the Chambers Judge Err by Giving Undue Weight to Uncorroborated Hearsay Evidence Provided by P Regarding the Deceased’s Distrust of J?
The BC Court of Appeal expressed the view that a statement contained in affidavit evidence submitted by P that the deceased had sought her consent to serve as executor and was adamant that neither J nor K be executors was admissible hearsay as it was a report of a statement evidencing a declarant’s intentions at the time the statements were made. It was open to the chambers judge to consider this evidence.
Thus, “where evidence of a testator’s intentions is pertinent to determination of an estate matter, the law permits reports of what the testator said about their contemporaneous intentions to be admitted into evidence.”
3. Did the Chambers Judge Err by Appointing a Professional Administrator in the Absence of Evidence that the Appointment Would Be in the Beneficiaries’ Best Interests or Would Address Their Welfare?
The Appellants submitted that the Court did not have the discretion to appoint a professional administrator because it was not a remedy that had been requested in the Application and, further, that the related costs were not canvassed in evidence.
The BC Court of Appeal disagreed, noting that s. 159 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”)[1] and s. 31 of the Trustee Act, R.S.B.C. 1996, c. 464[2] both confer a wide-ranging, open-ended discretion for Courts. Neither legislation is so confined that the appointment of a professional administrator would only be available on formal application supported by direct evidence of the costs involved as doing so “would get in the way of the efficient – that is, the just, speedy and inexpensive – resolution of this kind of dispute.”
However, the BC Court of Appeal expressed the view that the procedure implemented by the chambers judge for appointing the personal representative was problematic. While it would not have made sense to require the chambers judge to choose between refusing a justified removal application and appointing an unsuitable replacement proposed by the Appellant, the preferred course of action would have been the appointment of a replacement concurrent with the removal of an existing personal representative. If the materials failed to identify an adequate replacement, except in exigent circumstances, the preferable course would have been to adjourn the hearing and obtain the information required. The BC Court of Appeal recognised that the chambers judge was attempting to be practical, given the circumstances.
4. Did the Judge Err by Failing to Consider K as an Alternative or to Allow Further Applications to Address This Possibility?
The chambers judge was not presented with this alternative at the time of the hearing. Further, had K been proposed, it is likely the chambers judge would have rejected her for the same reasons J had been rejected.
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[1] S. 159 of the WESA obliges a Court that has removed a personal representative to appoint a new replacement who consents to act, unless the estate administration is complete or the Court does not consider a new appointment necessary.
[2] S. 31 of the Trustee Act provides, “If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.”