Manitoba beneficiary loses executor-removal bid; costs come from her inheritance

A Manitoba estate beneficiary has lost her bid to remove the executor and his lawyers, with the respondents’ court costs to be paid from her inheritance share rather than the estate as a whole.

In Emms v. Futros et al., 2026 MBKB 141, Justice Toews of the Court of King’s Bench of Manitoba dismissed the application on October 19, 2026. The judge found no substantive concern justifying removal and emphasized that an executor must administer the will reasonably and even-handedly, not simply follow one beneficiary’s wishes.

The costs award is based on the applicable court tariff. The reasons do not set a dollar amount, and the judge declined to award the higher solicitor-and-own-client costs sought in the litigation.

A dispute over estate administration

Angela Maria Emms, one of the estate’s primary beneficiaries, alleged that the executor had breached his fiduciary obligations. She wanted the Public Guardian and Trustee of Manitoba appointed in his place and also sought the removal of Tapper Cuddy LLP as his counsel.

The executor is a sibling of the deceased, Mary Sophie Futros. He is acting without payment, is not a beneficiary under the will, and had the support of every other beneficiary. At the time of the ruling, probate had not been granted and no estate funds had been distributed to beneficiaries.

Emms’s broader application sought an accounting, compensation to the estate for alleged losses, and orders denying compensation to the respondents. But the October 1 hearing addressed the requests related to removing the executor and the law firm. It did not decide separate litigation concerning the validity of a power of attorney.

Among Emms’s complaints was the use of the law firm’s trust account rather than a separate estate bank account. She also alleged that the executor’s attitude toward her and the lawyers’ conduct prevented them from properly fulfilling their duties. Those were her allegations, not findings of misconduct.

Disagreement did not establish grounds for removal

Toews found that the evidence did not establish a concern that this executor would fail to fulfil his obligations. Emms did not challenge the will’s validity or its bequests. The judge also found that her actions had prevented the executor from taking substantive steps to obtain probate or distribute assets according to the deceased’s wishes.

The court rejected the suggestion that taking a position adverse to Emms necessarily disqualified the executor or his counsel. Their responsibility was to act reasonably and even-handedly for all beneficiaries, within the will and the law. It was not to carry out her wishes regardless of those limits.

That conclusion did not relieve the executor of accountability. The judge noted that, when his responsibilities are completed, he can be required to account for his decisions and the distribution of estate assets.

No material-witness conflict for the lawyers

Emms also argued that lawyers from Tapper Cuddy would need to give disputed evidence and therefore could not continue acting as counsel. Her objections concerned statements in the executor’s affidavit about advice he had received and steps taken in administering the estate.

The court accepted the rule that counsel cannot also act as a material witness in the same proceeding, but found no such predicament here. The objections concerned whether particular evidence was admissible and how much weight it deserved. They did not put the court in the position of having to assess the credibility of counsel who had testified.

Costs charged to one beneficiary’s share

Toews dismissed the application and ordered the respondents’ tariff costs paid from Emms’s portion of the estate, not from estate assets generally. The judge found that the application did not advance proper estate administration, while expressly declining to characterize it as a tactical manoeuvre to remove the executor and counsel.

The decision leaves both in place. It makes no compensation award for the alleged estate losses and does not resolve the separate power-of-attorney litigation. Its conclusion on removal rests on the evidence in this application, not a rule that beneficiaries can never challenge an executor’s conduct.