Chesko v. Chesko Estate

Chesko v. Chesko Estate

The petition to remove the executor and trustees was dismissed because, on the facts, the respondents acted within the testamentary scheme and the detailed processes set by the settlor, engaged appropriate advisors, provided updates, and did not demonstrate dishonesty, endangerment of trust property, or lack of fidelity; delays were explained by asset complexity and COVID-19, beneficiaries were not united, and the high threshold for removal was not met.

Citation
2024 BCSC 394
Parties
Petitioner: Jason Gregory Chesko; Respondent; Executor of the Estate; Trustee of the Elizabeth Chesko Alter Ego Trust No. 1; Co Trustee of the Elizabeth Carolyn Chesko Trust Fund: John Edward Anthony Chesko; Respondent; Co Trustee of the Elizabeth Carolyn Chesko Trust Fund: Jennifer Carolyn Franks
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
7 March 2024
Procedural Posture
Petition to Remove Executor and Trustees; Ancillary Orders for Accounting, Tracing and Disgorgement / Application Heard; Reasons for Judgment and Dismissal of Petition (final Disposition)
Outcome
Application dismissed; petition to remove executor and trustees denied.
Legal Topics
Removal of Executor/trustee, Executor Administration, Trust Administration, Conflict of Interest and Self Dealing, Prudent Investor Duty, Costs and Indemnity
Source Language
English
Wills and Estates Trusts Probate Fiduciary Duties Civil Procedure Removal of Executor/trustee Executor Administration Trust Administration +3 more

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Parties

Jason Gregory Chesko

Petitioner

John Edward Anthony Chesko

Respondent; Executor of the Estate; Trustee of the Elizabeth Chesko Alter Ego Trust No. 1; Co Trustee of the Elizabeth Carolyn Chesko Trust Fund

Jennifer Carolyn Franks

Respondent; Co Trustee of the Elizabeth Carolyn Chesko Trust Fund

Procedural Posture

Petition to Remove Executor and Trustees; Ancillary Orders for Accounting, Tracing and Disgorgement / Application Heard; Reasons for Judgment and Dismissal of Petition (final Disposition)

Legal Issues

  1. 1 Whether there is cause to remove the nominated executor under WESA ss.158-159
  2. 2 Whether there is cause to remove trustees under Trustee Act ss.30-31
  3. 3 Allegations of delay in probate and administration

Ratio Decidendi

The petition to remove the executor and trustees was dismissed because, on the facts, the respondents acted within the testamentary scheme and the detailed processes set by the settlor, engaged appropriate advisors, provided updates, and did not demonstrate dishonesty, endangerment of trust property, or lack of fidelity; delays were explained by asset complexity and COVID-19, beneficiaries were not united, and the high threshold for removal was not met.

Court Disposition

Application dismissed; petition to remove executor and trustees denied.

Orders

  • Application dismissed and petition to remove John Edward Anthony Chesko and Jennifer Carolyn Franks denied
  • If parties cannot agree on costs, John and Jennifer to file written submissions not exceeding 10 pages within 30 days of release of reasons; Jason to file responsive submissions within 15 days thereafter; John and Jennifer may file a reply not exceeding 3 pages within 5 days of Jason's response