Being appointed as an executor of an estate is a position of trust and responsibility. Unfortunately, there may be instances where an executor fails to fulfill their duties adequately, causing distress and complications for the beneficiaries of the estate. In such cases, it may be necessary to remove the appointed executor using the Nova Scotia Probate Court.

Probate Court provides a legal avenue for addressing issues related to the administration of an estate. If you’re in Nova Scotia and find yourself in a situation where the executor who has already been appointed as the personal representative of the estate by the Probate Court via Grant of Probate is not carrying out their duties appropriately, there are steps you can take to have them removed:

1. Gather Relevant Information:

Before proceeding with the removal process, it is essential to gather evidence of the executor's misconduct or inability to perform their duties satisfactorily. This evidence will strengthen your case and support your claims in probate court. Documentation, emails, invoices, or any other relevant material that outlines the extent of executor's failure to do their job is necessary. An accurate timeline is important too.

2. File an Application with the Probate Court:

To begin the process of removing an executor, you need to file an application with the Nova Scotia Probate Court. The application will state the Order you are seeking and which legal authority you are relying on to have the Order granted. It will also set out the date and time the matter will first be heard, typically the first hearing is just to set the actual trial date and filing deadlines. You’ll probably need to speak to court staff to figure out when the next available dates are. Don’t forget, you’ll need to schedule the hearing far enough in the future to allow yourself time to serve the court filed documents on any other interested parties.

3. Present your Evidence via Affidavit:

Along with the Application itself you will need to file an Affidavit, which is your sworn statement outlining the evidence supporting your claim. You are also required to list the other ‘interested parties’ in your Affidavit. The ‘interested parties’ in any particular matter are defined in the Nova Scotia Probate Act. You will then list out the various happens that explain to the court how the appointed executor is failing to due their duty. To strengthen your case, you will want to explain and attach any financial records, or any other relevant documentation that supports your position. If applicable, you may also submit Affidavits from other people who have evidence to support your position.

4. Prepare for and Attend the Court Hearing:

Before the hearing, both you and the opposing party will have the opportunity to file a ‘Brief’ or ‘Pre-hearing memorandum’, which is your written argument to the court outlining how your evidence and the law work together in such a way that the court should grant your requested order. At the hearing itself, you will have the opportunity to address the court with any further arguments and if necessary, cross-examine the opposing party’s affiants. The other interested parties, including the executor, will also have a chance to respond and present their side of the story. Often, the judge will not rule right away, but will ‘Reserve’ their decision for another day.

5. The Decision

Once the court has determined what they want to do, an Order will be issued outlining exactly what will happen (for example, the Executor is removed and a new one appointed). The final decision will also address whether either party is responsible to pay a portion of the other side’s legal fees.

Removing an Executor who has been formally appointed as the Personal Representative of an estate is often not a simple matter. It can follow the same procedure as a regular lawsuit. In a circumstance where you are concerned an Executor is not doing what they are supposed to, it is always a good idea to get legal advice from a lawyer who is familiar both with the Probate process and civil litigation trials.

By: Dianna M. Rievaj, Founding Lawyer

Have Questions For Us?:

If you have any questions about Administering an Estate or the Probate process, you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers