Ruling says requiring formal application will prevent fast resolution of estate matter
The British Columbia Court of Appeal has ruled that a judge had the discretion to order professional administration of an estate, even without a formal application supported by direct evidence of the costs associated with that manner of administration.
Alvaro v. Alvaro, 2025 BCCA 386, revolved around the estate of Vera Alvaro, who had three children: Joseph, Karen, and Paula. In her house in Richmond, Vera began residing with her granddaughter, Mya, and Mya’s husband. Mya was Paula’s daughter.
Years later, in May 2022, Vera passed away. Her estate’s principal asset was her residence, assessed at about $1.46 million. She left a will made in 2015, whose beneficiaries were the parties in this case. Specifically, the will:
- left equal shares of the estate residue to her three children
- bequeathed to Mya the sum of $50,000 and the right to occupy the house for a year after Vera’s death
- appointed Paula as executor and trustee
- named Mya as an alternate if Paula could not or did not want to assume the role
In the present matter, the petitioners/appellants were Joseph and Karen, while the respondents were Paula and Mya.
In February 2024, Mya and her husband brought an action against the estate to enforce an allegedly binding agreement to sell them the house. They claimed that Vera and Mya had prepared an unwitnessed letter of intent for the sale of the home to Mya and her husband for $1 million.
Paula applied for probate. Joseph and Karen petitioned to remove Paula from her role, pass over Mya, and appoint Joseph as Vera’s personal representative.
In June 2024, a chambers judge of the Supreme Court of British Columbia partly allowed the application. He removed Paula from her role and passed over Mya upon finding that they were both in positions of conflict.
However, the judge refused to appoint Joseph as estate administrator. Instead, he ordered the appointment of an independent professional trustee and provided a procedure for choosing such a trustee.
The judge referred to hearsay evidence in Paula’s affidavit, which mentioned Vera’s statements seeking Paula’s consent to be the executor when making the will in 2015. According to the affidavit, though Paula initially refused, Vera insisted that she did not want Joseph or Karen to be executors because she did not trust them to abide by her wishes.
The judge noted that he should carefully approach Paula’s evidence of Vera’s statements. The judge also referred to Paula’s affidavit evidence stating that Joseph had taken steps over the years to oppose Vera’s decisions and choices, which had upset their mother.
On appeal, Joseph and Karen challenged the judge’s refusal to designate Joseph as the replacement trustee. They alternatively requested Karen’s appointment.
They noted that the application did not request the appointment of a professional administrator and that the judge did not canvass the costs arising from such an appointment.
No errors found
The Court of Appeal for British Columbia dismissed the appeal upon finding that the chambers judge had made no errors in exercising his discretion. The appeal court deferred to his discretionary decision regarding the replacement trustee.
The appeal court determined that the judge had sufficiently considered the beneficiaries’ welfare, did not assign undue weight to hearsay evidence, and justifiably found that appointing an objective professional trustee would be worth the costs, without inquiring further into this issue.
First, the appeal court held that the judge did not err by failing to prioritize the beneficiaries’ welfare as the most significant consideration when exercising his discretion to appoint a replacement personal representative.
The appeal court saw no error in the judge’s consideration of the evidence of Vera’s intentions within and beyond the will as impacting the choice of whom to appoint as her personal representative.
Second, the appeal court ruled that the judge did not give undue weight to Paula’s affidavit evidence, which supported that Vera had distrusted Joseph, when considering Joseph’s viability as the replacement personal representative.
The appeal court explained that the affidavit evidence about Vera’s statements was admissible hearsay that fell under an exception to the hearsay rule, which allowed reports of statements regarding a testator’s contemporaneous intentions when making the statements.
Third, the appeal court saw no error in the judge’s appointment of a professional administrator. The appeal court noted that the judge acknowledged that it was a small estate, took judicial notice that professional administration would entail costs, and perceived those costs as a burden worth bearing to ensure objective decisions about the estate administration.
The appeal court found that the judge had the discretion under s. 159 of BC’s Wills, Estates and Succession Act, 2009, and s. 31 of BC’s Trustee Act, 1996, to order the professional administration of the estate despite the absence of a formal application with evidence of the costs arising from that manner of administration.
The appeal court added that requiring a formal application would prevent the parties from efficiently, justly, swiftly, and cheaply resolving the dispute.
Lastly, the appeal court said the judge did not err by failing to consider Karen as an alternative replacement personal representative or by failing to permit further applications that raised this possibility. The appeal court pointed out that the parties did not present this alternative during the hearing.
