Malkin Estate (Re)

Malkin Estate (Re)

The executor's persistent failure to provide formal accounts after repeated formal demands since March 2023, combined with a perceived conflict of interest arising from unreported capital gains, voluntary disclosure and a CRA reassessment that threatens estate assets and will make remuneration contentious, rendered his continued appointment contrary to the beneficiaries' welfare; removal and substitution were necessary and appropriate, and immediate passing of accounts with a Registrar reference was ordered under statutory and inherent jurisdiction.

Citation
2025 BCSC 1357
Parties
Applicant/beneficiary: James (Hamish) Malkin; Applicant/beneficiary: Peter Malkin; Applicant/beneficiary: William (Bill) Malkin; Respondent/executor and Trustee (removed): Andrew Jukes; Deceased: Margaret Leslie Malkin; Beneficiary (supportive): David Malkin
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
16 July 2025
Procedural Posture
Probate (estate Administration) / Removal Application and Hearing in Chambers Resulting in Judgment
Outcome
Application granted in part: respondent removed as executor/trustee; applicants' proposed substitutes appointed; respondent ordered to pass accounts and accounts referred to Registrar; costs awarded to applicants.
Legal Topics
Removal of Executor, Accounting by Trustee, Conflict of Interest, Trustee Remuneration, Reference to Registrar
Source Language
English
Wills and Estates Trusts Probate Civil Procedure Tax Law Removal of Executor Accounting by Trustee Conflict of Interest +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

James (Hamish) Malkin

Applicant/beneficiary

Peter Malkin

Applicant/beneficiary

William (Bill) Malkin

Applicant/beneficiary

Andrew Jukes

Respondent/executor and Trustee (removed)

Margaret Leslie Malkin

Deceased

David Malkin

Beneficiary (supportive)

Procedural Posture

Probate (estate Administration) / Removal Application and Hearing in Chambers Resulting in Judgment

Legal Issues

  1. 1 Whether the executor should be removed for failure to account
  2. 2 Whether a conflict of interest arising from alleged tax errors and a CRA reassessment warrants removal
  3. 3 Whether the continued appointment would impede proper administration of the estate and affect remuneration determination

Ratio Decidendi

The executor's persistent failure to provide formal accounts after repeated formal demands since March 2023, combined with a perceived conflict of interest arising from unreported capital gains, voluntary disclosure and a CRA reassessment that threatens estate assets and will make remuneration contentious, rendered his continued appointment contrary to the beneficiaries' welfare; removal and substitution were necessary and appropriate, and immediate passing of accounts with a Registrar reference was ordered under statutory and inherent jurisdiction.

Court Disposition

Application granted in part: respondent removed as executor/trustee; applicants' proposed substitutes appointed; respondent ordered to pass accounts and accounts referred to Registrar; costs awarded to applicants.

Orders

  • Respondent Andrew Jukes is removed as executor of the will and trustee of the estate.
  • Hamish (James (Hamish) Malkin) and William (Bill) Malkin are appointed as executors and trustees in substitution for Andrew Jukes.