While a personal representative named in a will cannot be required to assume that office, once an individual has commenced acting as an executor and trustee, he or she cannot unilaterally resign and divest himself or herself of the position. A person named in a testamentary document who does not wish to act may renounce his or her entitlement to act as an executor and trustee and file that renunciation with the court. However, once a Certificate of Appointment of Estate Trustee has been issued by the court, a personal representative must be removed by court order upon application made pursuant to the Trustee Act. A court may remove a personal representative and appoint a new personal representative upon an estate trustee's own application or upon the application of an estate beneficiary.
A removal application may be brought by a beneficiary who is displeased with the actions of a personal representative or by a trustee who is unable to work with a co-trustee or cannot resolve a fundamental disagreement respecting the administration of an estate.
The application is brought pursuant to section 37 of the Trustee Act. The application must be served upon any co-trustees and upon all beneficiaries including those beneficiaries with a contingent interest in an estate. Where minors are involved or where, there is a class of beneficiaries including unborn or unascertained, The Children's Lawyer must be served.