Saskatchewan Estate Litigation Update: Leier v Probe, 2021 SKQB 41 – Removal of an executor for failure to account

A recent case from the Saskatchewan Court of Queen’s Bench reminds us of the importance to always account for transactions made acting as a power of attorney, or, as an executor.

Leier v Probe involved an application by Christopher Leier, to remove Barrie Probe, as executor of the estate of Christopher’s mother, Margaret Leier. Christopher also sought an order to compel Barrie to provide a full accounting of Barrie’s administration of the Estate to date.

The facts may be summarized as follows:

  1. On April 19, 2013, Margaret executed an Enduring Power of Attorney [POA] appointing Barrie Probe as the attorney;
  2. On April 24, 2013, Margaret executed a will, appointing Barrie as executor and naming her son Jonathan Leieras the alternate executor;
  3. Under the POA, Barrie managed Margaret’s personal and financial affairs from 2013 to her death in July 2019;
  4. After Margaret’s death, Christopher’s lawyer requested a final accounting of Margaret’s affairs and the decisions Barrie made in executing his duties under the POA. When Barrie did not respond, the Public Guardian asked him to provide an accounting;
  5. What documents Barrie did eventually provide by way of an accounting were muddled and incomplete;
  6. The documents appeared to show that Barrie had used Margaret’s funds for Barrie’s own gain. Further, Barrie was not adequately able to provide records explaining  these transactions:
  1. Barrie took money out of Margaret’s account as a loan to Barrie’s daughter for the purchase of a house and another withdrawal was to effect repairs and renovations to the property;
  2. There was another loan agreement dated November 27, 2016 for $15,000, executed by Barrie as POA in Barrie’s daughter’s favour;
  3. Barrie also paid his daughter’s legal fees by a cheque drawn on Margaret’s account;
  4. On June 6, 2017, Barrie wrote himself a cheque for $50,000 drawn on Margaret’s account and another on June 9, 2017 for $120,000;
  5. There were numerous examples of accounting haziness for which Barrie had not offered explanations:
  1. Margaret’s credit card statements show that from August 20, 2016 to February 19, 2017, Barrie charged over $17,000 in purchases at stores such as The Home Depot, Fries Tallman Lumber, Rona, Canadian Tire, Kal-Tire, and Regina Battery Depot;
  2. In addition, for this time frame, Barrie drew cash advances of at least $1,100 on Margaret’s credit card without explanation;
  3. Margaret also owned a home on Salt Spring Island in British Columbia. Barrie stated that he spent possibly $20,000 on water and sewer issues on the house but did not adequately explain those repairs. The August 24, 2020 order directed he do so, but Barrie only provided documentation for invoices totalling $7,198.82;

The Court characterized the above as only a “small sample of discreet transactions that I find concerning or questionable”. In total, Christopher deposed that from 2013 to Margaret’s death in 2019, Barrie caused over $1,358,000 to be withdrawn from her account in the form of debit transactions, cheques, cash withdrawals or transfers.

In addition to the above transactions, the Court found  that Barrie had not faithfully fulfilled the terms of the Will.  Margaret stipulated that three of her four children were to receive $25,000 for their use absolutely. However, in relation to the share of one son, David, Barrie did not give him the $25,000 bequest.

David deposed that Barrie told David his share would be invested but he did not provide details. David said Barrie told him he would receive “a sum” every month. Since April 2020, David said he had received only $800.00. Such conduct by Barrie was not a proper distribution under the Will.

Removal of Barrie as executor:

Christopher argued that Barrie should be removed, as his conduct as Margaret’s POA prior to her death showed a lack of reasonable fidelity.

The Court held that if this were a situation that could be resolved by a simple disclosure of accounting records, an application to have Barrie removed was premature.

However, Christopher had already sought an accounting, and obtained disclosure orders against Barrie. In response, Barrie had simply failed to properly account for his transactions.   As such,  it appeared that no further court orders for disclosure would assist anything. Barrie had already had his chance to “explain” his transactions, and the reality was  that he simply could not explain many large transactions.

The Court concluded that Barrie had shown incredibly poor insight into his responsibilities as a POA.

The Court therefore found an adequate basis on which to remove Barrie as executor:

[23]           Barrie’s abdication of his accounting responsibilities relating to Margaret’s bank and visa accounts, together with the amounts withdrawn from those accounts are enough to raise red flags. His declared understanding of his responsibilities as executor of Margaret’s will (that he could invest the bequests as he saw fit rather than distribute them as Margaret directed) are further indicia of a lack of proper capacity to execute his duties and a want of reasonable fidelity.

[24]           While most of the evidence of a lack of fidelity relates to Barrie’s responsibilities as a POA, I find that it is enough to cause grave concerns as to Barrie’s capacity to execute his duties as executor. I am satisfied that the evidence here reveals Barrie’s want of the proper capacity to execute his duties and/or a want of reasonable fidelity as in accordance with the legal principles set out above. In my view, I am satisfied it is in the best interest of the estate that he should be removed as the executor of the Estate and I so order.

In summary, the Court ordered the below:

  1. Barrie was removed as the executor of the Estate;
  2. The Court revoked the letters probate and granted administration de bonis nonwith will annexed. It was ordered that Jonathan Leier be appointed as executor of Margaret’s estate without bond, and failing him, Christopher would act;
  3. Barrie was to prepare a full accounting of his administration of Margaret’s estate from the date of her death to the date of this order; and
  4. Barrie was ordered to personally pay the costs of this action to Christopher.

Lesson learned:

Leier offers a valuable reminder of the importance to always act in the interest of the grantor, or the deceased. If you act as power of attorney, or executor, you should never use the assets of the estate for your own self-interest. Moreover, executors and powers of attorney should also avoid co-mingling of funds (that is, personal monies with monies belonging to the adult).

If you do the above, and cannot provide a legitimate basis for your actions, you may well be removed from your position, and face stiff costs penalties.

 James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Robertson Stromberg announces the launch of the SK Estate Law blog

We are pleased to announce the launch of our new Estate Law blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents.

The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Check out the blog here and join the discussion.


Saskatchewan Estate Litigation Update

An interesting recent estate litigation decision out of Saskatchewan is Leason v Malcolm, 2020 SKQB 102.

Leason reminds us that once a  bequest is vested, it may not be divested. In other words, if a beneficiary survives the testator, but the beneficiary then dies before actually receiving their share of the estate, the  beneficiary’s estate will still be entitled to receive the share.


In Leason, the deceased was one Donald Aronetz who died on September 9, 2018. At issue was a gift that his Will made to Jennie Leason. Jennie Leason then died on December 24, 2018, some 15 weeks after Mr. Aronetz had died.

Facts in Leason

Under estate administration law, the bequest to Jennie Leason in Mr. Aronetz’s will would have taken effect (would have vested) on the date of his death, September 9, 2018, when Jennie was still alive. Her subsequent death would have made no difference to that circumstance, and her share of the estate would be payable to her estate.

The bequest in Mr. Aronetz’s will, however, was unusally worded. It read as follows in paragraph 2:

2. … I gift my estate in equal shares unto any SURVIVING siblings, who at the present time are named as follows: (a) Jennie Leson [sic] …, (b) Anne Malcolm …, (c) John Aronetz …, (d) Lillian Whitfield …, (e) Mike Aronetz …, (f) Nick Aronetz …. In the event either of these siblings predecease me or die before having benefited in whole or in part from this my estate, I direct any such undistributed share shall NOT be redirected unto any spouse or child of such a deceased person, rather such an undistributed share shall be equally redistributed amongst the remaining SURVIVING siblings. I have not mentioned any other siblings who have already predeceased me, as this is consistent with my wishes to gift only unto surviving siblings.

[emphasis added]

The respondent applied for letters probate in Mr. Aronetz’s estate in December 2018, while Jennie Leason was still alive, and the executor of Mr. Aronetz included Ms. Leason in the list of beneficiaries of Mr. Aronetz’s estate. The executor however received the grant of letters probate in Mr. Aronetz’s estate in January 2019, after Ms. Leason had died. The executor had not distributed any part of the estate to Jennie before Jennie died.

The issue before the Court was whether the estate of Jennie Leason was a beneficiary of the estate of Donald James Aronetz.

In light of the above provision in paragraph 2 of Mr. Aronetz’s will, the executor of Mr. Aronetz’s estate took the position that Ms. Leason is no longer a beneficiary of Mr. Aronetz’s estate.

The Decision of the Court

The Court interpreted clause 2 above as providing for:

  1. a gift to vest on Aronetz’s death; and
  2. if there was a subsequent death of a beneficiary, before distribution, the gift would be divested.

The Court then turned to consider whether this testamentary intention should be enforced?

The Court held that such intention was contrary to the established legal principle that once a bequest is vested, it cannot be divested. As such, the above provision of Mr. Aronetz’s Will was not enforceable. The Court concluded as follows:

[30]         I conclude, then, that in law a testamentary direction that purports to reverse a gift that earlier had become effective is not enforceable. Put another way, a bequest once vested may not be divested.

[31]        The bequest to Jennie Leason, in Mr. Aronetz’s estate, was effective at the moment of Mr. Aronetz’s death. The gift vested – was de jure receivable – on his death. Ms. Leason’s subsequent death, before she actually received any part of the estate, does not affect the full vesting of her interest in the estate at the moment of Mr. Aronetz’s death. Mr. Aronetz’s direction that in such a circumstance Ms. Leason’s share should go to the other named beneficiaries, rather than to her estate, is not enforceable. 

As such, the Court held that the estate of Jennie Leason was indeed a beneficiary of the estate of Donald James Aronetz, and entitled to receive the gift as if the gift had in fact been distributed to Jennie during her lifetime.

Legal costs:

As an interesting aside,  the Court awarded full indemnity (dollar for dollar) legal  costs to both sides. Their full legal costs were thus payable out of the estate of Donald  Aronetz.

The Court noted the entire court application had been necessitated by the provisions of Mr. Aronetz’s will, and by no fault of the executor, nor the fault of the heirs of Jennie Leason. The Court held that it had been reasonable for the applicants to bring the application, and it was reasonable for the respondent to oppose it.

As such, Leason also serves as a reminder to ensure that a Will is carefully drafted. This will better avoid the risk that a court proceeding may be required to give effect to your Will (as such court application may dilute your estate through awards of legal costs).


James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Kusch and Clavelle Contribute to CBA BarNotes

The most recent issue of the Canadian Bar Associations’s BarNotes contains articles by two RS lawyers.

Travis Kusch’s article “Closely Held Corporations: Avoiding the Messy Break-up”  offers practical advice to families who enter into business together.

Curtis Clavelle contributed “When Can an Employee Sue an Employer?”.  In the article he gives guidance on the scope and effect of c. 43 of The Workers’ Compensation Act.

BarNotes is published three times a year and is provided to members of CBA Saskatchewan.



Steele and Parsonson Speak on Wills and Estates

On March 5, James Steele and Ben Parsonson volunteered their time to address wills and estates issues with the residents of the Palisades Retirement Residence.

Together they spoke on the importance of having a Will, or Power of Attorney, or health care directive as well as some potential issues which may cause a Will to be challenged.

Area of Expertise Estate Litigation