Koglin Estate (Re)

Koglin Estate (Re)

Application to remove the executor was dismissed because the applicants did not provide the clear, persuasive evidence required to overcome the presumption in favour of the testator's chosen trustee; material conflicts in affidavit evidence required fuller exploration (accounting and examination under oath) and...

Source-derived case information.

Citation
2021 BCSC 2525
Parties
Applicant Residuary Beneficiary: Matthew Taylor; Applicant Residuary Beneficiary: Johanna McKenzie; Applicant Residuary Beneficiary: Kelly Koglin; Executor and Residuary Beneficiary (respondent): Michelle Bush; Deceased: Herbert Hermann Willi Koglin
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
30 December 2021
Procedural Posture
Probate Application (removal of Executor) / Hearing on Notice of Application; Order Issued Dismissing Removal With Directions for Accounting and Examination
Outcome
Application to remove Michelle Bush as executor dismissed; orders made for accounting and examination under oath; liberty to re-apply after examination
Legal Topics
Removal of Executor, Accounting by Executor, Examination Under Oath, Conflict of Interest, Executor's Duties
Source Language
english
Wills and Estates Trusts Probate Fiduciary Duty Civil Procedure Removal of Executor Accounting by Executor Examination Under Oath +2 more

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Summary, issues, holding and outcome

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Parties

Matthew Taylor

Applicant Residuary Beneficiary

Johanna McKenzie

Applicant Residuary Beneficiary

Kelly Koglin

Applicant Residuary Beneficiary

Michelle Bush

Executor and Residuary Beneficiary (respondent)

Herbert Hermann Willi Koglin

Deceased

Procedural Posture

Probate Application (removal of Executor) / Hearing on Notice of Application; Order Issued Dismissing Removal With Directions for Accounting and Examination

Legal Issues

  1. 1 Whether the executor acted in a manner endangering the estate
  2. 2 Allegations of dishonesty or lack of reasonable fidelity by the executor
  3. 3 Whether a conflict of interest arose from contracting with a company employing the executor's son

Ratio Decidendi

Application to remove the executor was dismissed because the applicants did not provide the clear, persuasive evidence required to overcome the presumption in favour of the testator's chosen trustee; material conflicts in affidavit evidence required fuller exploration (accounting and examination under oath) and cross-examination, and appointment of one applicant as replacement raised a potential conflict given existing litigation — therefore the proper remedy was to order an accounting and an examination and allow re-application after those processes.

Court Disposition

Application to remove Michelle Bush as executor dismissed; orders made for accounting and examination under oath; liberty to re-apply after examination

Orders

  • Application to remove Michelle Bush as executor dismissed
  • Michelle Bush ordered to provide a full accounting of her activities as power of attorney and as trustee of the Estate