Derco v. Derco

Derco v. Derco

The court declined to disturb the testator's express appointment of executors absent clear evidence of necessity. The evidence did not establish on the record that Holly had misappropriated funds or acted dishonestly such that she should be passed over; newspaper clippings and disputed affidavits were insufficient...

Source-derived case information.

Citation
2020 BCSC 2199
Parties
Petitioner (vancouver); Respondent (nelson): Miles Jeffery Derco; Respondent (vancouver); Petitioner (nelson): Holly Mae Derco; Respondent (vancouver); Petitioner (nelson): John Barry Derco
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
18 December 2020
Procedural Posture
Wills and Estates Petition Removal/pass Over of Executors and Trustees / Hearing and Oral Judgment (reasons for Judgment)
Outcome
Nelson petition dismissed as to Miles; Vancouver petition partly granted: John Barry Derco passed over and removed as executor and trustee; applications to pass over/remove Holly Derco and to pass over Miles Derco dismissed.
Legal Topics
Removal of Executor, Pass Over Under WESA S.158, Trustee Act S.31 Appointment/removal, Conflict of Interest, Committeeship, Allegations of Misappropriation
Source Language
english
Wills and Estates Trusts Probate Trustee Law Elder Law Removal of Executor Pass Over Under WESA S.158 Trustee Act S.31 Appointment/removal +3 more

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Parties

Miles Jeffery Derco

Petitioner (vancouver); Respondent (nelson)

Holly Mae Derco

Respondent (vancouver); Petitioner (nelson)

John Barry Derco

Respondent (vancouver); Petitioner (nelson)

Procedural Posture

Wills and Estates Petition Removal/pass Over of Executors and Trustees / Hearing and Oral Judgment (reasons for Judgment)

Legal Issues

  1. 1 Whether Holly Derco should be passed over or removed as executor/trustee for alleged misappropriation and conflict of interest
  2. 2 Whether John Barry Derco should be passed over or removed as executor/trustee because of an apparent $50,000 debt and perceived conflict
  3. 3 Whether Miles Derco is disqualified by a conviction for dishonesty or otherwise unsuitable to act

Ratio Decidendi

The court declined to disturb the testator's express appointment of executors absent clear evidence of necessity. The evidence did not establish on the record that Holly had misappropriated funds or acted dishonestly such that she should be passed over; newspaper clippings and disputed affidavits were insufficient to prove a disqualifying conviction or dishonesty for Miles. However, the evidence left an unremoved perception of conflict as to John Barry concerning the $50,000 referenced in the will; Barry's evidence did not dispel that perception. Accordingly, under Trustee Act s.31 and WESA s.158 the court granted the order passing over and removing Barry but dismissed the applications...

Court Disposition

Nelson petition dismissed as to Miles; Vancouver petition partly granted: John Barry Derco passed over and removed as executor and trustee; applications to pass over/remove Holly Derco and to pass over Miles Derco dismissed.

Orders

  • Nelson petition dismissed
  • Pursuant to s.31 Trustee Act and s.158 WESA, order granted that John Barry Derco be passed over as executor of the will dated May 31, 2012 and removed as trustee of the estate of Olive Mary Jane Derco