Estate Litigation Update: Poole v Dailey, 2020 SKQB 226

I practise in the area of estate litigation and am often reminded of the importance of having a clearly drafted Will.

A good recent example comes from the decision in Poole v Dailey, 2020 SKQB 226.
The deceased had left his estate between his two children, Brian and Patricia, on the below terms:

  1. Patricia was to receive the home at Regina Beach provided she met certain conditions. The clause read as follows:

    Further, provided that my said daughter takes physical possession of the said residential property within three months from the date of my death and occupies that property as her residence, then I direct that the said residential property and all contents shall be transferred to my said daughter, to be hers absolutely, subject only to any mortgage which may be registered against the property at the date of my death.

  2. the residue was then to be shared equally between Brian and Patricia.

The issue before the Court in Poole was thus: Had Patricia taken physical possession of the Regina Beach home, within 3 months of Earl’s death on August 1, 2015?

Regrettably, the Will did not define in black and white terms, what would trigger a finding of “occupancy” or “residency”.

A trial was held. The parties each called evidence to support their own position. Brian argued that Patricia had not resided in the home within 3 months. He relied on:

  1. the fact that he often drove by the home during the relevant period, and did not often note evidence of Patricia residing at the home;
  2. The water metre readings that Brian had recorded from the home. Brian suggested that an average person uses 100 gallons of water a day.

However, the Court did not find that Brian had qualified himself as an expert witness, for the purpose of introducing expert testimony.

Patricia in turn argued that she had in fact resided in the home within 3 months. She relied on the below:

  1. over the course of August and September 2015, she had moved her things out of the home in Regina, and into the home at Regina Beach;
  2. Patricia had reconnected with a girlfriend from high school, at Regina Beach and entertained her cousins in her home at Regina Beach. Patricia’s friend testified to this;
  3. There was nothing in the evidence that suggested that Patricia was not being truthful about her occupation of the Regina Beach home.

Ultimately, the Court, therefore, found that Patricia had in fact occupied the Regina Beach home, as prescribed by the will. As such, Patricia Dailey was entitled to absolute title of the property.

Poole offers a practical lesson on the importance of having a carefully defined Will. Here, the costly proceeding could perhaps have been avoided had the Will defined what exact criteria would constitute “occupancy” or “residency”.

The Court’s ruling on costs:

Interestingly, the Court in Poole did not award Patricia her legal costs out of the Estate. The Court held that the proceeding was intended to advance Patricia’s personal interests in the estate. As such, Patricia’s legal fees should not be borne by the estate.
This finding may attract comment. Traditionally, in estate matters, legal fees for successful parties have often been awarded out of the estate. Moreover, they are often paid on the “solicitor client” scale (meaning dollar for dollar costs). The reasoning has traditionally been that the estate should bear the cost of any proceeding aimed at determining the true intention of the deceased, or, of any proceeding caused by an ambiguity for which the deceased was responsible. Such traditional reasoning would have appeared to apply equally in Poole.
It is too early to tell if the costs aspect of Poole may be an outlier decision, or, if it signals a broader departure in Saskatchewan from the prior approach to legal costs in estate matters.

Read more on our 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.

Contacting a Lawyer on this Subject

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 [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

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Saskatchewan Estate Litigation Update: Hayes v Swift, 2021 SKQB 132

The recent decision in Hayes v Swift, 2021 SKQB 132 offers a reminder that beneficiaries should ensure they have real evidence of executor wrongdoing before they bring a court application against an executor.

Facts:

The testator, Bernard William Hayes, had passed away, and his will made specific gifts for his son and two grandchildren These parties were the applicants.
The testator was married to the executor, Ann Swift, when he died. The will provided that Ann received the residue of estate. Letters probate were issued, and the executor duly provided each beneficiary with their specific bequests under will. Ann had shipped the testator’s son several boxes of woodworking tools at a cost of $1,496.25 to the estate. However, the son maintained that there were more tools in the estate. Ann claimed that she had provided all that she had found.
The applicants, who had no lawyer to represent them, applied in court for relief, including for an order directing the executor to deliver woodworking tools. The applicants also sought an accounting from the executor.

Outcome:

The application was dismissed. The Court held that the executor had not wrongly withheld woodworking tools. The executor had identified a box of miscellaneous hand tools which may be considered woodworking tools, but the Court held that the obligation to arrange for and pay the cost of transporting items was on the son. The executor had already incurred $1,496.25 in shipping to send bequeathed woodworking tools to the son. Here, the appraised value of the remaining tools was $2,700, and the cost to ship those tools was approximately $2,000. In considering the shipping costs already incurred by the estate, and the value of the remaining tools, any further expense to the estate would be unduly high in the circumstances. The Court held that if there remained woodworking tools that the son claimed to be entitled to, the son was responsible for the cost of shipping and transportation.
The beneficiaries sought a more detailed inventory of any tools in the estate. However, the Court held that the applicants had not shown that the executor had deliberately withheld any tools from the beneficiaries. The Court refused to order a more detailed inventory;

[64]         There is no evidence presented by the applicants, beyond speculation, that the inventory provided by the executor prior to and through this application is incomplete as it relates to any tools, including woodworking tools.

Refusal by the Court to order an accounting:

The applicants had also sought an accounting from the executor.  The court dismissed this application. The Court held that the applicants had not shown cause as to why an accounting should be ordered. The Court held that the grandchildren had already received their specific bequests and thus had no further interest in the estate.

The Court held that the executor had properly established a $100,000 trust for the testator’s son, and had duly made all payments required by the will. Thus, the Court held there was no practical purpose for ordering an accounting, as the only remaining property in the estate went to the executor herself.

The Court held that it would be an exercise in futility to require the sole residual beneficiary, the executor, to provide an accounting in this circumstance:

[71]                In this case, the applicants have not shown cause as to why this Court should order an accounting. Each of Jeremy Hayes and Amanda Campbell have received their $10,000.00 bequest and they have no further interest in the estate. The executor has established the $100,000.00 trust for Mr. Hayes and made the payments required under the Will. I see no practical purpose for which the applicants seek an accounting when there is a sole residual beneficiary and the financial bequests have been satisfied.

[75]             It would be an exercise in futility to require the sole residual beneficiary, in her role as executor, to provide an inventory or accounting of an estate to which she now has sole entitlement. The applicants have no further interest in the estate.

Conclusion:

The decision in Hayes v Swift was critical of the unreasonable demands made by the self-represented beneficiaries.

It is not uncommon to see situations in which beneficiaries – some who are well-intentioned, some who are not – seem to wrongly believe that the executor is hiding things from them. In cases where the executor provides all reasonable information, but the beneficiaries are never satisfied, misguided court applications by beneficiaries can arise.

Hayes v Swift shows that courts will readily criticize beneficiaries who pursue meritless concerns all the way to court, incurring expense for all concerned. The Court in Hayes v Swift specifically suggested that the beneficiaries should have sought legal advice, which would have prevented them from acting in a misguided manner:

[85]          The applicants’ approach is entirely consistent with the concerns repeatedly identified by this Court when a party receives “legal advice” from a non-party who is completely unfamiliar with the practice of law and who seeks to intervene in a legal proceeding in an uninformed manner. For a party to choose to rely on the “legal advice” of a non-party is to risk incurring costs when this “representation” is misguided and unreasonable.

Moreover, the Court in Hayes awarded costs to the executor, payable personally by the applicants, in the amount of $2200. If the costs were not paid, the beneficiary would not have the opportunity to receive any further tools. This is a stern warning that the Court was not pleased with the behaviour of the beneficiaries.

Read more on our 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.

Contacting a Lawyer on this Subject

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 [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

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Saskatchewan Estate Litigation Update: Whelan v Chaszewski, 2021 SKQB 286

The recent decision in Whelan v Chaszewski, 2021 SKQB 286 offers guidance for a situation in which two competing parties want to be appointed to administer an estate. The lesson from Whelan is that a court will not generally appoint a party who has a potential conflict of interest in the Estate (that is, a conflict between their interest personally, and their interest as a neutral administrator)

Introduction:

Michelle Whelan and Peter Chaszewski applied to be appointed as administrators of the Estate of their father Michael Chaszewski. Michelle and Peter also sought an order against their adoptive brother, David Chaszewski, including an inquiry into David’s actions relating to the estate since 2015, and an order evicting David from the mobile home owned by the Estate.

David in turn applied for his own order appointing him as administrator of the Estate.

Background:

The facts may be summarized as follows:

  1. Michael Chaszewski had passed away on March 6, 2015;
  2. The deceased died without a will;
  3. Michelle and Peter are the deceased’s biological children and David was his adopted son;
  4. After Michael’s passing, David moved into the Residence with his family. He did not pay rent to the Estate;
  5. Shortly after David moved into the Residence, Peter asked David to pay $500 per month as rent for his use of the Residence until the Estate was settled. David refused unless it was part of a legal settlement of the Estate;
  6. David did what he describes as extensive renovations on the Residence. He paid all property taxes, fire insurance, utilities, and maintenance costs since moving in. David also began taking care of the Estate, albeit without any formal authority to do so. He dealt with Michael’s personal items, paid a small mortgage on the Residence and some outstanding utilities and looked after property taxes etc;
  7. In July of 2021, Michelle and Peter filed an application for letters of administration in SUR 134 of 2021, Judicial Centre of Estevan;
  8. There had never been a distribution from the Estate. David said that he hoped to obtain a loan to pay out Michelle and Peter’s share of the Residence once the Estate can be lawfully administered, and that he intended to continue to reside there.

Court’s decision:

The most important issue before the Court was who would be appointed as administrators of the Estate.

The Court first identified the test which governed the appointment of an administrator where there were competing applications. The Court adopted the following test:

  • The first duty of the court is to place the administration of an estate in the hands of the person who is likely best able or best suited to convert it;
  • An administrator must act with “detachment and even handedness” not be tainted by an actual or perceived conflict of interest.

The court recognized that there were some factors which favored David’s application to be appointed administrator. David had stepped in and began administering the estate when no one else was doing so. He had information about the Estate. In addition, David lived in the jurisdiction where the assets are located.

However, the court decided not to appoint David.  The Court held that the key consideration was the ability to convert the assets of the Estate to the advantage of the beneficiaries – including by making the appropriate necessary distributions.  The Residence is by far the largest asset of the Estate. It belonged to all those who are beneficially entitled to the Estate.

The Court held that David was not focused on the best interests of the Estate. The Court found the below facts:

  1. David’s resistance to paying occupation rent showed that David had not been focused on realizing the best value for the beneficiaries in a timely way;
  2. The biggest issue was that David was not taking any steps to realize the value of the Residence and to distribute it to the beneficiaries. Michelle and Peter were however motivated to do so;
  3. David was in a conflict of interest position which compromised his ability to be neutral and made it inappropriate for him to be appointed as administrator. He was conflicted in at least four particular ways:
  1. Michelle and Peter want to sell the Residence so its value can be realized and distributed, while David wants to continue to live there;
  2. It was in David’s interests that the purchase price or value of the Residence to be divided is as small as possible, as he intends to keep the property and may be able to keep the difference between the current market value of the Residence and the amount paid out to the other beneficiaries;
  3. Michelle and Peter want to receive occupation rent for the six years that David has been living in the Residence, which David does not want to pay; and
  4. If occupation rent is to be paid, it was in David’s interests for the amount of that rent to be as low as possible, while it was in Michelle and Peter’s interests for the rent to be as high as possible.

As such, David was in a conflict-of-interest position which compromised his ability to be neutral. He should therefore not be administrator.

Accounting:

The Court also ordered that David provide an accounting. It noted that David had had de facto control over the Estate since Michael’s death in March of 2015. His dealings with Estate property are entirely within his knowledge, and for this reason, it is appropriate that he provide a formal accounting of his actions.

Lesson:

Whelan reminds beneficiaries that they cannot take the law into their own hands. Here, David had no right to simply “move into” the home after the deceased died. David needed first to obtain the agreement of all beneficiaries. Because David unilaterally moved in and then became potentially indebted to the Estate for rent, David was in a conflicted position as a potential administrator.

 

Contacting a Lawyer on this Subject

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 [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our 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.

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Saskatchewan Estate Litigation Update: Vance (Re), 2021 SKQB 320

The recent decision in Vance (Re), 2021 SKQB 320, reminds us of the importance of keeping our wills updated.

The application in Vance was brought by De-Anna Lynn Bailey, in relation to the estate of her nephew, James Benjamin Gilbert Vance (“Deceased”).

Background

To understand the outcome in Vance, we need to understand the effect of s. 17 of the s. 17 of The Wills Act, 1996, SS 1996, c W-14.1. S. 17 was only recently repealed. Before March 2020 the provision provided as follows:

17(1)   A will is revoked when:

  1. the testator marries; or
  2. the testator has cohabited in a spousal relationship continuously for two years.

Revocation by marriage was a historical principle of law.  Previously, the law felt that, entering into a spousal relationship, either by cohabiting or formal act of marriage, was a significant step that changed the legal landscape of the person involved. As a result, the legislature had concluded that any prior testamentary disposition will not be considered valid in the face of the new spousal reality.

In Vance, the factual situation meant that the prior will made by the Deceased had been revoked by his common law relationship. The chronology ran as follows:

  1. The Deceased made his will in October 2004. In the will, De-Anna Lynn Bailey was named as the beneficiary of the Deceased’s estate;
  2. In 2012, the deceased Christina Laturnas began cohabiting in a spousal relationship;
  3. In 2014 (the second anniversary date of the commencement of the deceased’s cohabitation with Ms. Laturnas), the 2004 Will was deemed revoked by virtue of  17(1)(b) of the Act(as it then read);
  4. In January 2020, the deceased and Ms. Laturnas separated and were no longer living together;
  5. On March 16, 2020,  16(a)and 17 of the Act were repealed. However, the legislature did not specify that the repeal applied to wills already revoked by marriages or spousal relationships. Rather, the repeal appeared to only apply to future events; and
  6. On June 6, 2021, the deceased died.

Thus, the issue in Vance was primarily whether the amendment to s. 17 was retroactive, and whether the amendment could “revive” the 2004 Will.

Decision in Vance:

As the court held “the issue here is whether the amendments to the Act were retroactive, with the result that the 2004 will was never revoked at all or was revived.” (para 7)

Vance held that, regrettably for De-Anna Lynn Bailey, the repeal to s. 17 was not retroactive. The Court relied on the principle that when a legislature changes the law, that change will “only apply retroactively where the legislature has clearly indicated that it has weighed the benefits of retroactivity with its potential unfairness or disruption.”

The Court in Vance was being asked to turn back time and revive the Deceased’s 2004 will long after it has been deemed revoked. As the amendment to s. 17 was not retroactive, the Court did not have the power to do this. Simply put, the legislature did not explicitly indicate that the repeal to s. 17 was to operate retroactively.

Lessons:

Vance shows us that the amendment to s. 17 is not retroactive. While the result in Vance was legally correct, it was a harsh (and unfair) blow to De-Anna Lynn Bailey, who understandably felt that the Deceased truly wished her to inherit his estate.

Most non-lawyers are not aware of the issue of revocation by marriage. There was no evidence referenced in this decision, showing that the Deceased knew that his spousal relationship in 2014 had operated to revoke his 2004 will. As a result, the Deceased likely wished De-Anna Lynn Bailey to receive his property. Because of the technicality of revocation by marriage, this did not occur, and the intentions of the Deceased were not given effect to.

Vance is a reminder that all persons should have an updated will. Here, if the Deceased had kept his will updated after the ending of his relationship with Christina Laturnas, there would have been an updated testamentary document in place, reflecting his actual intentions. This is in no way to cast blame on the Deceased, as there are likely millions of Canadians who have a will which is out of date. Nevertheless, as Vance shows, the alternative may be a harsh one. 

Contacting a Lawyer on this Subject

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 [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our 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.

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Estate Litigation Update: Poole v Dailey, 2020 SKQB 226

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Funeral expenses: Why executors should pay them promptly

This article discusses the payment of funeral expenses out of an estate, and why executors should pay them promptly.

The first reason is practical. After death, the funeral home is often the first to provide a service to the estate. It disposes of the body in a safe and respectful manner. As such, the funeral home understandably expects to be paid. To pay this expense promptly will ensure the estate is not later sued for the invoice, and interest charges are not incurred. Moreover, it means there is one less expense for the executors to later deal with.

The second reason to pay promptly, is that the law prioritizes funeral expenses. Almost every will drawn by a lawyer, will include a clause directing the executor “to pay out of and charge to the capital of my general estate my just debts, and funeral and testamentary expenses.”

Thus, the will of a deceased usually expressly requires the estate to pay the funeral expenses. Thus, even in situations where is a dispute over which will is valid, it is very unlikely there will be a dispute over whether it was legitimate to pay funeral expenses. Again, it is simpler to pay those expenses, get them out of the way, and then move on to other issues (like which will is valid etc).

For an example of how the law prioritizes the payment of funeral expenses, we may look to the Alberta decision in Chernichan v. Chernichan Estate, 2001 CarswellAlta 1730, 2001 ABQB 913, [2001] A.J. No. 1429. There, the Court spoke of the “public interest in the prompt and dignified disposal of human remains”, and that the funeral costs should be paid promptly:

14      Where one party pays funeral expenses, he or she is generally able to recover them from any person who has a higher obligation to pay them, even if that person had no input into or even knowledge of the funeral: Schara Tzedeck v. Royal Trust Co. (1952), [1953] 1 S.C.R. 31 (S.C.C.) at p. 37. Funeral arrangements must usually be made in a very short period of time, sometimes before the personal representative is identified, and invariably before probate is issued. The family usually makes the arrangements without regard to who is in a technical sense legally responsible for either making the arrangements or paying the expenses. Because of the public interest in the prompt and dignified disposal of human remains, the law imposes a duty on those ultimately responsible to reimburse the person who actually incurs the obligation. The obligation to reimburse arises in restitution, not in contract, and is founded on considerations of necessity, unjust enrichment and public health: Goff and Jones, The Law of Restitution, (5th ed., 1998), pp. 480-81. Thus the son in Routtu could recover from his father. See also Tkachuk v. Uhryn (1952), 6 W.W.R. (N.S.) 515 (Sask. Dist. Ct.) (daughter entitled to costs of funeral from estate); and Sargent & Son Ltd. v. Buday, [2000] O.J. No. 5476 (Ont. S.C.J.) (estate must reimburse son). The Applicant is therefore prima facie entitled to reimbursement for the reasonable expenses he incurred.

[emphasis added]

Even where an estate is insolvent, funeral expenses have a priority among the debts. Indeed, we find this enshrined in s. 46.2 of the Administration of Estates Act, SS 1998, c A-4.1 which says that reasonable funeral expenses are to be paid in priority to virtually all other debts. The provision reads below:

Ranking of debts

46.2 (1) When the assets of an estate are not sufficient to pay all the debts of an estate, the following debts shall be paid proportionately and without any preference or priority of debts of one rank or nature over those of another:

  1. debts due to the Crown in right of Saskatchewan and to the executor or administrator of the deceased person; and
  2. unsecured debts.

(2) Reasonable funeral, testamentary and administration expenses are to be paid in priority to the claims mentioned in subsection (1).

(3) Nothing in this section prejudices any lien or charge existing during the lifetime of the deceased on any of the deceased’s property

[emphasis added]

We even find that the federal Bankruptcy and Insolvency Act makes clear that funeral expenses have a priority, where an estate has assigned into bankruptcy:

Priority of claims

136. (1) Subject to the rights of secured creditors, the proceeds realized from the property of a bankrupt shall be applied in priority of payment as follows:

(a) in the case of a deceased bankrupt, the reasonable funeral and testamentary expenses incurred by the legal representative or, in the Province of Quebec, the successors or heirs of the deceased bankrupt;

(b) the costs of administration, in the following order,

  1. the expenses and fees of any person acting under a direction made under paragraph 4.03(1)(a),
  2. the expenses and fees of the trustee, and
  3. legal costs;

[emphasis added]

Thus, there is a super-priority for funeral expenses. In the Chernichan decision referenced above, the Court even held that funeral expenses have a priority even over unpaid taxes owing by the estate. Because the executor, in that case, should have paid the funeral expenses before the taxes (and she did not), she was personally liable to pay any unpaid reasonable funeral expenses.

What if the funeral expenses are unreasonable?

Funeral expenses only have a priority to be paid, to the extent that they are reasonable. We see the qualifying word “reasonable” used in both the Administration of Estates Act, and the Bankruptcy and Insolvency Act.

What then is reasonable? There is some prior guidance from courts, suggesting that the cost of the funeral should be sensible, having regard to the deceased’s financial assets, and other circumstances. Thus, if a deceased died with very little in assets, it is reasonable that their funeral should contain only that is necessary. Indeed, the Chernichan decision held that ‘in insolvent estates only the simplest and most modest tombstones can be charged against the creditors.”

If the executor of a small estate insists on a magnificent and expensive service or headstone, the funeral home should obtain appropriate assurances from the executor (i.e. pre-payment, or a contract stating that the executor will be personally liable to pay the cost, if the estate cannot afford it).

What if the estate bank accounts are frozen?

Some delays in payment are frustrating but legitimate.

In many, even before probate is obtained, a bank will release monies from an account to pay the funeral costs. If an executor says that the bank will not release money to pay the funeral cost, the funeral home should ask the executor to find out why this is.

What about the case of a disputed will, where someone says Will A is valid, and someone argues Will B is valid? In such a case, the bank may be reluctant to deal with any executor until the one true will is determined in a court proceeding (and thus, once this is determined, it will also determine who is the true executor)

Should a will challenge be a good reason to hold up payment of funeral costs? From a common sense perspective, the two conflicting sides should ideally come to a negotiated agreement on the issue of funeral costs. That is, they may agree to immediately pay the funeral costs out of a bank account, on the basis that, regardless of which will is later found to govern, there is no reason the funeral expenses could not be paid in the interim. Of course, the above outcome requires the reasonableness of the two sides, which is never guaranteed in litigation.

What can funeral homes do to ensure they get paid?

If the circumstances of the deceased are complex (i.e. no local family to act as “decision maker” or pursue probate) the only way to guarantee payment is to ask for payment up front, before  providing services. One situation which occurs is there the funeral home does the work, but is left holding its unpaid invoice when no family member will take the effort to take steps to administer the estate etc. If the funeral home has evidence before the funeral that this may occur, the funeral home may wish to ask for money upfront.

Second, a funeral home should always make sure that it is obtaining instructions from the true representative of the estate. This is already required in the Funeral and Cremation Services Act, which requires a funeral home to obtain written authorization from the authorized decision-maker, before providing services (see s. 92). This due diligence should ensure that a funeral home does not do a lot of work at the request of person A, only to find out that person B was the true executor.

If a funeral home has tried all reasonable attempts to secure payment of an overdue invoice, they may need to simply sue the estate. If the bill is for less than $30,000, which most will be, you can sue in Small Claims court. However, note that in Small Claims court you cannot recover any legal fees, if you use a lawyer. Also note that, due to limitation periods, you must sue within 2 years of the non-payment. Indeed, when suing estates, the sooner you sue the better, to ensure that estate assets are not distributed out of your reach.

Sometimes the question arises – can a funeral home sue the executor personally, as well as the estate, for unpaid expenses? The executor’s personal money, is separate from the estate’s money. The most reliable way to ensure you can sue an executor personally, is to ensure the executor signs a contract in advance, stating that they are personally liable (in addition to the estate) to pay the funeral home. Not all executors may be willing to sign such a clause however, so you should clarify this before the funeral.   

That said, if an estate legitimately incurs a debt to a funeral home, and then later the executor distributes all the assets of the estate before paying the funeral home, that executor may become personally liable. Each situation is unique, and it is recommend to consult a lawyer for specific situations.

Contacting a Lawyer on this Subject

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 [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our 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.

Saskatchewan Estate Litigation Update: Nicklen Estate, 2021 SKQB 208

The recent Saskatchewan decision in Nicklen Estate offers a reminder of the importance of making changes to your will while you still can. If you draft “notes to self” but postpone actual changes to your will, it may be too late.

Background

A will was executed by the deceased, Albert Edward Nicklen [Edward], on February 5, 2013. The Will was prepared by a lawyer, and the Will was valid.

However, there was also another, later document – a NAPA Auto Parts receipt. On the back of this receipt, Edward made some handwritten notes with respect to certain property.

The receipt states as follows:

I gave William Nicklen N.E. 1 52 15 W2 and give Ab Letkeman and Bev Seykora each $20,000 at little each year.

Sold CAT to Rodge the person I sold 830 John Deere to same person cash paid for $15,000 made the CAT. CAT not paid.

And gave my ½ share.

All on my will.

Albert Edward Nicklen:

Owner

The changes embodied by this receipt, if found valid by a Court, would impact the distribution of the Estate.

The executor named in the Will, Jeannette Wickstrom, gave evidence that on February 6, 2020, just ten days before Edward’s death, Edward showed her the receipt. At the bottom of the receipt, Jeannette wrote:

I Jeanette Wickstrom acknowledge that Albert Edward Nicklen showed me the changes that he wished to make to his Will on Feb 6, 2020. These changes are written on the back of this Napa receipt dated August 14 2019 in his own handwriting.

Although the Document contains Edward’s full name, it was printed but was not signed by him in cursive writing.

The issue was whether this was a valid codicil. Certain of the beneficiaries believed the handwritten document was a “codicil”, to be read hand‑in‑hand with the Will.

The other beneficiaries believed the NAPA receipt contained mere notes that were jotted down by Edward on a scrap piece of paper, as a reminder to himself of changes he wanted to make to his Will. But, they argued, Edward had crucially failed to make these changes before he died on February 16, 2020. Thus, the notes on the receipt were not testamentary in nature.

The Issue

The issue was whether the NAPA receipt was a valid testamentary document, and should be probated in conjunction with Edward’s Will? 

Was this receipt testamentary in nature?

The court ultimately held that the receipt was not testamentary in nature.

The Court first explained that the document did meet the prerequisites to be considered a holograph will pursuant to s. 8 of the Act. This was because the notes on the receipt were in the handwriting of Edward. The Court held that even printed (not cursive) signatures could be held to be a “signature”.

However, a review of all circumstances suggested to the Court, that the receipt was not a final expression of Edward’s testamentary intentions. The Court observed that a document must contain more than a fleeting expression of how the individual wishes his or her property to be disposed of after death. The document must represent a fixed and final expression of intention in relation to the disposition of property.

Here, the Court held that the receipt was not a fixed and final expression of intention in relation to Edward’s disposition of property.

  1. Edward had previously always used professionals to handle his affairs – lawyers for his legal matters and accountants for his income taxes. It was out of character for him to make handwritten notes on receipt. The fact that Edward had attempted to contact a lawyer in relation to changes to his Will very shortly before he died, suggested that he wished to change his Will but did not ultimately do so before he died;
  2. Second, Edward would usually sign a document in cursive writing and would not just print his name. It was also unusual for him to write on a scrap of paper. Rather, Edward liked to write on lined paper and always had a pad of lined paper with him. These facts suggested the receipt contained mere notes to draft, not a true intention to make a codicil;
  3. Jeanette’s note, written on the receipt, refers to the receipt as “changes that [Edward] wished to make to his Will”. This statement was prospective in nature. It speaks of a future intention. Thus, Edward had not yet made such final changes;
  4. Further,  Edward’s notations are unclear. He indicated in the receipt that he “gave” NE 01 to William, which speaks to the past. But then he also indicated that he “give[s]” $20,000 a little each year to Abe and Beverly, which speaks to the future. He referred to a piece of equipment that he had already sold but noted on the receipt that he was still owed money for that piece of equipment. The Court held the receipt was both prospective and retrospective and did not reflect a fixed testamentary intention.

As such, the Court allowed probate for the Will alone to proceed, but not for the receipt:

[58]  At the end of the day, based upon my review of the Document and the extrinsic evidence presented to me, they have not satisfied that burden. I have concluded that Edward’s notes on the Document represented changes he intended to make but he died before his intention came to fruition. At best, the Document was a “note to self” prepared by Edward.

Lesson

If someone wishes to make a change to their will, they should move as quickly as possible to see a lawyer, and make formal changes. To do otherwise, and simply rely on handwritten notes, gives rise to two problems. First, even if the Court finds the notes testamentary in nature, the informal nature of the notes will likely give rise to expensive litigation, which diminishes and delays the Estate. Second, there is also the even worse possibility, that the Court will find the notes are not truly testamentary. In such cases, the notes (and any intentions expressed on them) will be ignored.

Contacting a Lawyer on this Subject

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 [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our 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.

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