Saskatchewan Estate Litigation Update: Kaushik v Kaushik, 2022 SKQB 135

The recent Saskatchewan Queen’s Bench decision in Kaushik v Kaushik, 2022 SKQB 135, offers an overview of a situation in which multiple persons concurrently seek to be appointed as the sole administrator of an Estate. 

Overview:
  1. Sadhna Kaushik applied for appointment as the administratrix of the estate of Daya Chand Kaushik [Daya], her late father;
  2. Daya died on June 7, 2019;
  3. Daya’s last will and testament dated September 22, 1987, named his wife, Vimla Devi Kauchik [Vimla] as executrix. It directed further that in the event she predeceased him, Rakesh Kaushik [Rakesh], Sadhna’s brother, and one of the respondents on this application, should serve as executor of his estate;
  4. Vimla predeceased Daya;
  5. To date, no application to have Daya’s will probated had been made, as the original will had been lost;
  6. Rakesh, brother of Sadhna, argued that he himself should be appointed as administrator. Rakesh relied on the below facts:
  1. On or about August 30, 2016, Daya executed an Enduring Power of Attorney naming Rakesh as his personal and property attorney. Rakesh acted in this capacity until Daya’s death in 2019;
  2. However, on or about September 20, 2016, Daya purportedly executed a Revocation of Enduring Power of Attorney setting aside the previous document. However, Rakesh only learned of this after Daya’s death;
  1. The six beneficiaries were divided as to their choice of the appropriate administrator of Daya’s estate. Three beneficiaries, Douglas, Sheila, and Hazel signalled their support of Rakesh, and each formally renounced her right to letters of administration in favour of Rakesh.
  2. The last two beneficiaries – Elizabeth and Neil – adamantly reject the appointment of either Sadhna or Rakesh to be administrator of Daya’s estate. Instead, they proposed that the parties be directed to attend mediation in an attempt to resolve this dispute.
  1. Elizabeth and Neil opposed appointing Sadhna because she allegedly mismanaged the affairs of Vimla’s estate when Sadhna served as her mother’s executrix; and
  2. Elizabeth and Neil opposed appointing Rakesh because of his alleged continuing failure to account adequately for monies transferred from Daya’s accounts during the latter years of Daya’s life, even in the face of an order of the court dated August 13, 2020.
  1. As for Sadhna, only Sadhna supports an order appointing herself to be the administratrix of Daya’s estate.
Who had priority to apply to administer?

Subsection 13(1) of the Administration of Estates Act stipulated that no letters of administration shall be granted to any person unless:

  1. all persons with a prior or equal right have renounced their right to administration; or

  2. a judge has made an order dispensing with the requirement to obtain the renunciation of the right to administration of persons mentioned in clause (a)

In the context of this application, this meant Sadhna was not entitled to be appointed administratrix because Rakesh has not renounced his right to administration, and vice versa. Thus, the court had to intervene to break the deadlock between the two siblings.  

The court ultimately appointed Rakesh as administrator:

As the only surviving children of Daya and Vimla, both Sadhna and Rakesh were potentially entitled to apply to be appointed as administrator of Daya’s estate. The question was which of them, if either, is the most appropriate person to serve in that capacity.

The court ultimately found that Rakesh was the preferable person to administer the Estate. The three main factors could be summarized below:

  1. Reason 1: First, Daya decided in 1987 to appoint Rakesh as the alternate executor of his estate should Vimla predecease him. Despite Vimla’s death in 2016, at no time prior to his death in 2019 is there any evidence to show that Daya revised his will, let alone executed a new one. This consideration weighed heavily in favour of appointing Rakesh as administrator, by showing the intention of Daya as to who would administer his estate;
  2. Reason 2: Rakesh was opposed by some beneficiaries, but he ultimately did have the consent of a majority of the beneficiaries. In addition to himself, Rakesh had the consent of Sheila, Hazel, Douglas, all of whom have formally renounced their rights;
  3. Reason 3: The evidence discloses that Rakesh maintained a closer relationship with Daya than did Sadhna;
  4. Reason 4: Rakesh purported to act as Daya’s attorney pursuant to the terms of an Enduring Power of Attorney dated August 30, 2016. It is true that there is evidence that Daya revoked this, but no one appeared to learn of this until after Daya’s death. The fact that Rakesh did look after Daya’s affairs for a time, would support a finding that Rakesh was well placed to “convert [Daya’s estate] to the advantage of those who have claims against it, either by paying the creditors or by making the appropriate necessary distributions”.

The one aspect which gave the court pause, was about the allegation that Rakesh had refused to provide an accounting of his handling of Daya’s estate from September 1, 2016 – the approximate date when the enduring power of attorney took effect – to June 7, 2019, the date of Daya’s death.

However, the court found that Rakesh in his affidavit had spoken to the steps he took to comply with the order to account. The court took comfort from the fact that Rakesh had retained local counsel, who would direct Rakesh on how to carry out his responsibilities as administrator in an appropriate and lawful manner.  

Moreover, the court found that, while Rakesh has been slow to provide an accounting of his management of Daya’s affairs, he had now provided one in the requisite form prescribed by The Queen’s Bench Rules. Additionally, his affidavit provides further information respecting his dealings with Daya’s estate while he acted as his father’s attorney.

Moreover, the court was not ultimately swayed by  two findings of profession misconduct made against Rakesh by the discipline committee of his professional regulatory body, the Chartered Professional Accountants of Saskatchewan. While these were stain on a professional’s reputation, they were not enough on its own to disqualify him or her from acting as the administrator or testator of a deceased’s estate.

Outcome and costs order:

The court in Kaushik ultimately appointed Rakesh as administrator, but did require that he obtain a bond. Interestingly, despite the success of Rakesh in this application, the court ordered that each side bear its own costs:

63      I am satisfied that considering all the circumstances, this application was necessary in order to settle the question of who should be appointed administrator of Daya’s estate. A stalemate had occurred between the two people legally authorized to apply for letters of administration. It so happens that it was Sadhna who initiated the application. In my view in the unusual circumstances of this case Daya’s estate should not be burdened with the costs of this application. Rather, I have determined that each party should bear his or her own costs of this application, and I so order.

The reasoning above – that “Daya’s estate should not be burdened with the costs of this application”  – is unusual.

In this situation, the Estate benefited from the clarity of this court order, which finally appointed someone to administer the Estate, and which took the estate out of the administrative limbo it had fallen into. Thus, it would have been entirely customary for the Estate to bear some or all of the legal costs incurred by a newly appointed administrator in his successful application.

Lessons learned:

Kaushik reminds us of the some of the factors which a court will rely on, in a situation of competing applicants for administrator. These factors include:

  1. Are there any clues, showing whom the deceased themself had wanted to appoint?
  2. Was there a majority among the beneficiaries, as to whom they want to administer the Estate?
  3. Had one of the potential applicants ever acted as attorney for the deceased before, thus placing them in a better position to now convert the estate to the advantage of the beneficiaries?

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: McCabe v Kowalyshyn, 2022 SKCA 56

The recent Court of Appeal decision in McCabe v Kowalyshyn, 2022 SKCA 56, offers various lessons to Estate litigators. These include:

  1. The reality that court approvals of Estate land sales, under s. 50.5 of The Administration of Estates Act, SS 1998, c A-4.1, do not simply focus solely on market value. The court can also look at other considerations, such as whether the sale will reasonably reduce future litigation, wasted effort, or delay in the Estate.
  2. The reality that if parties agree in advance to a certain specified sale process, but do not later like the result, the court may not let them later challenge the outcome of that sale process.
Background:

McCabe arose out of a sale of farmland owned by an Estate. The background of McCabe informs some of the issues addressed by the Court. The background is summarized as follows:

  1. The deceased, Mike Kowalyshyn, died on July 1, 1996, ostensibly leaving a life interest in his estate to his wife and the remainder of it to their 12 adult children. The Estate owned, inter alia, eight quarter sections of farmland (“Farmland”), which had been leased to Nicky (a beneficiary of the Estate) and his wife, Debbie since the 1990s;
  2. Joseph Kowalyshyn was the executor of the Estate and was also one of its beneficiaries;
  3. There were a total of 12 adult siblings involved, who were the children and beneficiaries of their father’s estate, the estate of Mike Kowalyshyn;
  4. In 2017, certain of the Estate’s beneficiaries (the “Objecting Beneficiaries”) commenced proceedings against Joseph and the Estate, as well as against Nicky and Debbie, asserting that the Farmland had been leased at less than fair market rent (thus failing to maximize the Estate value);
  5. The focus of the parties turned to the sale of the Farmland. A variety of purchase offers were made:
  1. Nicky and Debbie offered to buy the Farmland for $987,121, which Joseph “conditionally accepted” as executor of the Estate (Queen’s Bench decision, McCabe v Kowalyshyn, 2021 SKQB 144, at para 8);
  2. This caused rancor amongst the Objecting Beneficiaries because they believed the Farmland was worth more than this price;
  3. On December 9, 2020, the Objecting Beneficiaries advised Joseph Kowalyshyn that some or all of them would be making an offer to purchase the land on more favourable terms, namely a purchase price of $1,000,000.00 (Queen’s Bench decision at para 8);
  4. On January 3, 2021, Nicky and Debbie Kowalyshyn increased their offer to purchase to $1,010,000.00  (Queen’s Bench decision at para 8);

The closed auction process:

  1. The parties could not agree, and the matter went to a court hearing on January 5, 2021, as well as various later conference calls with the Court. As a result of discussions, the parties agreed to a closed, inter-family auction. The process was reduced to writing, and set out a time-sensitive, process-detailed procedure whereby the land would be exposed to offers from the Kowalyshyn family;
  2. In accordance with the proposed method of sale, two groups (Nicky and Debbie Kowalyshyn on one hand, and Joyce Kowalyshyn, Walter Kowalyshyn, Eugene Kowalyshyn and Michael Kowalyshyn on the other hand) presented various back and forth offers on the Farmland;
  3. Nicky and Debbie Kowalyshyn presented the last and highest bid on February 8, 2021 in the amount of $1,325,000.00.
  4. No higher counter offer was received from Joyce Kowalyshyn, Walter Kowalyshyn, Eugene Kowalyshyn and Michael Kowalyshyn;
  5. However, the Objecting Beneficiaries then objected to any sale for $1,325,000.00. They asserted that they had gained evidence that the Land was worth more. For example, on February 24, 2021, Joyce Kowalyshyn contacted SAMA and learned that the Farmland had been newly assessed at $1,422,700.00, an increase from the former assessment of $1,150,681.50;
  6. Further, Joyce Kowalyshyn also contacted Wayne Berlinic, a realtor, and asked him to prepare a marketing plan for the estate land. Mr. Berlinic stated his belief that the most likely sale price for the land would be between $1,448,100.00 and $1,544,800.00 given recent market trends. Counsel for the Objecting Beneficiaries, in correspondence directed to the court, advised that later on March 26, 2021 he was advised that Mr. Berlinic had sold 120 acres of farmland near Buchanan, Saskatchewan for $2,083.00 per acre. If an equivalent price was received for the estate land, the total value of the land would approach $1,778,882.00;
  7. In reply,  the executor, Joseph Kowalyshyn, responded by commissioning a formal appraisal of the land by Robin Johnson, a member of the Appraisal Institute of Canada. He appraised the land using a .86 multiple of the new SAMA assessments and provided a value of $1,209,000.00, including buildings on the home quarter.
Queen’s Bench Ruling in McCabe v Kowalyshyn:

The Objecting Beneficiaries refused to consent to the sale of the land for $1,325,000.00.

The issue for the Queen’s Bench court (“Chambers judge”) was whether to approve the sale for $1,325,000.00, or to send it a future auction on the open market.

For context, s. 50.5(1) of The Administration of Estates Act, SS 1998, c A-4.1  holds that  an executor shall not sell land in an Estate, for the sole purpose of distributing the estate among the beneficiaries, unless those persons concur in the sale. Thus, the executor either needed unanimous agreement of the beneficiaries to the $1,325,000 sale, or, he needed a court order to override the non-consent of certain beneficiaries.

The Chambers judge approved the sale by the Estate of the Farmland to the respondents, Nicky and Debbie Kowalyshyn, for $1,325,000. The Court largely relied on the below grounds:

  1. The Objecting Beneficiaries were reneging (in the view of the Court at least) on a method of sale that they had agreed to, and in which they actively participated;
  2. The Objecting Beneficiaries had changed their position on what was the appropriate value of the Farmland. The Objecting Beneficiaries all agreed in writing that the offer of $1,000,000.00 was “deemed to be in the interest and to the advantage of the Estate.” Notably, that price was not only $325,000.00 below the price offered just weeks later by Nicky and Debbie Kowalyshyn but, more significantly, below the SAMA assessment then in currency ($1,150,681.50);
  3. The sale for $1,325,000 was in the best interest of the Estate. True, such sum may not maximize total market value, but s. 50.5 did not focus solely on market value. It instead allows the Court to look at other facts as well, such as:
  1. What sale would avoid further legal fees and dispute;
  2. What sale would avoid further delay or limbo, for the Estate;
  3. What would avoid having the Farmland sit fallow and unused in 2021.
  1. The Court preferred the appraisal evidence of Mr. Johnson. He used approved methods of appraisal, including comparable land sales as late as April 2021. He had provided topographical photographs of the Farmland. The court said that it would always favour an appraiser’s report over an opinion of value offered by a realtor, particularly a realtor who proposes to be engaged in the sale of the land.
Issue at the Court of Appeal:

The Objecting Beneficiaries appealed to the Court of Appeal. They asked the Court of Appeal to overturn the Chamber judge’s approval of the sale for $1.325 million. They asked instead for the Court of Appeal to direct the Estate to sell the Farmland at public auction.

Court of Appeal decision in McCabe v Kowalyshyn:

The Court of Appeal held that the Objecting Beneficiaries were bound by the process they had helped negotiate, and agreed to. That is, the bidding process had been negotiated and agreed upon by all parties, it had been conducted fairly, and it had established a closed market restricted to Estate beneficiaries and their spouses. Its object was not to achieve a sale at fair market value; it was to resolve the dispute over the sale of the Farmland fairly and finally (Court of Appeal decision at para 35).

Nothing about the new evidence of market value, had impugned the agreed-upon bidding process or how that process had been managed by Joseph.

Thus, the Court of Appeal upheld the Chambers judge’s reliance on factors, which were not limited to market value. For example, the Chambers judge had considered such factors as:

  1. The reality that the Estate faced mounting legal fees due to sharp divisions amongst the beneficiaries and the continuing litigation;
  2. The Estate’s principal asset — the Farmland — would be left fallow in 2021 if not sold, producing neither rent nor crops, until the dispute was resolved;
  3. The Objecting Beneficiaries had not satisfied their burden of proving that the $1.325 million was under value;
  4. Moreover, even if $1.325 million was not the highest possible value, the price was not the sole consideration when giving approval under s. 50.5. Had the Legislature intended for s. 50.5 to solely hinge on market value, when approving a sale, the legislature could have said just that. 
Lessons learned:

First, if beneficiaries agree to the method of sale and, participate in that method of sale, they will have a difficult time in later challenging the outcome.

Second, the criteria of highest “fair market value” is not the only consideration that the Court will consider, when approving a sale under s. 50.5.

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: Choquette v Viczko, 2021 SKQB 167

The recent decision in Choquette v Viczko, 2021 SKQB 167, offers a new interpretation of s. 50.5 of the Administration of Estates Act (“Act”).

Background:

Under s. 50.5 of the Act, if an executor sells land to which a beneficiary is beneficially entitled, the executor requires the consent of that beneficiary. The provision reads as follows:

50.5(1) The executor or administrator shall not sell real property for the sole purpose of distributing the estate among the persons beneficially entitled to it unless those persons concur in the sale.

Facts in Choquette v Viczko

The factual background in Choquette may be summarized as follows:

  1. Joseph Viczko died on September 10, 2011. Joseph had three children, namely, Ms. Choquette, Donna Boots and David Viczko;
  2. Joseph had been a farmer. His will directed that it was his “intention to sell the W1/2 12‑39‑27 W2, or any other farm land that [he owned] while I am living and distribute the proceeds of sale equally between my daughters”. The will further provided that if, at his death, Joseph had not sold the farmland, then it “shall be sold by my Trustee and the proceeds divided equally between my daughters”;
  3. At the time of his death, Joseph had not sold the west half of section 12, and so it was left to be distributed in accordance with his will. Ms. Boots was named as executor under the will;
  4. In 2012, she sold the land to her brother, David Viczko, and his spouse, Jennifer Viczko;
  5. In 2013, Ms. Choquette commenced an action seeking to set aside the sale and transfer. In her statement of claim she identified two grounds. Among her objections, was the assertion that her consent to the sale was required because of s. 50.5(1) of the Administration of Estates Act.
Queen’s Bench Ruling in Choquette v Viczko:

One issue that Choquette considered was this: who qualifies as a  beneficiary whose consent to the sale of the land is required under s. 50.5 of the Act?

Choquette clarified that not every sale of estate land will trigger the need for s. 50.5 consents from Estate beneficiaries.

For example, Choquette said that if the Will is such that the beneficiaries of the Estate are only left the proceeds of the sale of the land (but not given a right to go on title to the land itself), then the executors need not obtain consent.

The Court in Choquette reasoned as follows:

23      This operation of s. 50.4 is consistent with the overall approach of the Legislature to wills and estates. That approach is to accommodate, where possible, the implementation of a testator’s final testamentary wishes. Reading “the persons beneficially entitled to it” to mean “the persons beneficially entitled to the real property” is consistent with that approach. I conclude that “the persons beneficially entitled to it” in s. 50.5(1) means “the persons beneficially entitled to the real property”.

24      Therefore, s. 50.5(1) refers to persons who are beneficially entitled to the real property that is proposed to be sold. Here, Ms. Choquette is not such a person. Rather, she is beneficially entitled to a portion of the proceeds of the sale of the real property. Therefore, the answer to this question is “no”. Ms. Choquette is not a beneficiary whose consent to the sale of the land is required under s. 50.5 of The Administration of Estates Act.

This has practical implications for many executors. Many wills say that the Estate is to be sold (liquidated) and the proceeds divided between the beneficiaries. In such case, the names of beneficiaries are not actually going on title to the land. Rather, the beneficiaries will later get a sum of cash (representing the sale proceeds).

Choquette also declared that where is a direction in the Will to sell land, and distribute the proceeds, s. 50.5 simply does not apply to that situation. That is because the terms of the Will already provide sufficient authority for the Executor to sell Estate land:

27             Put another way, s. 50.5 is an enabling provision, not a restricting provision. It enables an executor to sell real estate where the executor is not otherwise empowered to do so. Here, where the executor was expressly empowered by the testator to sell the land, there was no need for the executor to resort to s. 50.5 for authority to do so.

36      The question that I am considering here asks whether the specific direction given in the will of the deceased, to sell the land and distribute the proceeds thereof, is paramount to the provisions of the Act (specifically s. 50.5). The answer effectively is “yes”, but the more precise answer is that, because of the specific direction given in the will, the provisions of s. 50.5 have no application. It is not that both the will and s. 50.5 apply to the circumstances, with the direction in the will being paramount. Rather, because of the direction in the will s. 50.5 of the Act does not apply to the circumstances at all.

The court has the ability to retroactively approve a sale:

Choquette also affirmed that the court has the ability to retroactively approve a sale which occurred without beneficiary approval. The court will look at whether the sale was appropriate (i.e. is there evidence it was sold for fair market value? Would it serve no purpose to re-open the sale, causing delay or expense).

If the sale was appropriate, then the court can “cure” the prior lack of beneficiary consent.

We find the below in Choquette:

39      Section 50.5(4)(b) refers to court approval of a sale where a beneficiary does not concur in the proposed sale. Here, the sale occurred years ago. The sale to the Viczkos is not a proposed sale. What is sought is retroactive approval of the sale. In the circumstances of this matter, it is appropriate to approve the sale retroactively. In so saying, I have reference to the guidance provided to the court, in s. 50.5(5), when considering a request to approve a sale:

(5) On application pursuant to subsection (4), the court may make an order approving the sale of the real property if the court is satisfied that it is in the interest and to the advantage of the estate of the deceased and the persons beneficially interested in it.

(emphasis added)

Leave to appeal:

The unsuccessful party in Choquette sought  an order extending the time within which to appeal the Queen’s Bench decision. The Court of Appeal did not give her permission to appeal. In large part, the Court of Appeal found that there was no error with the underlying conclusion that the sale should be approved as reasonable, in any event.

However, the Court of Appeal did suggest that Choquette’s interpretation of s. 50.5 may one day be revisited (and thus is not yet cemented in stone):

[36]           If the Chambers judge’s decision to dismiss Ms. Choquette’s claim rested solely on his analysis in relation to these three questions, I would have found that there was an arguable issue raised by her appeal and would also have been inclined to grant Ms. Choquette an extension of time to appeal, even in the face of her significant delay in making her application. The conclusions reached by the Chambers judge involve determinations of questions of law, largely turning on the proper interpretation of the Act. In the course of his analysis, he acknowledged the existence of ambiguity in the meaning of several of the key provisions. On several key issues, the Chambers judge referred only to decisions of judges of the Court of Queen’s Bench. In this regard, on the question as to whether s. 50.5(1) is applicable when a will gives an executor a right of appeal was raised, but left undecided, in Viczko CA. Moreover, although the Chambers judge supported his conclusion with reference to several decisions from the Court of Queen’s Bench, he was required to distinguish Tomochko Estate v Wilchuk2017 SKQB 381, 34 ETR (4th) 283, and Holter v Holter2019 SKQB 102. Regardless of whether the distinctions he offered are sound, it is at least arguable that s. 50.5(1) should be interpreted as applying even when a will provides for a right of sale.

Choquette v Viczko, 2022 SKCA 11

Thus, it is very possible that the proper interpretation of s. 50.5 may continue to be litigated in Saskatchewan court, until the Court of Appeal addresses this specific issue.

The law in light of Choquette

For now, as Choquette was not overturned on appeal, the law of Saskatchewan is currently set out below:

  1. Where a person is merely beneficially entitled to a portion of the proceeds of the saleof the real property, but not the land itself, s. 50.5 does not apply (Choquette at para 24);
  2. Where the executor was expressly empowered by the testator to sell the land, there was no need for the executor to resort to  50.5for authority to do so” (Choquette at para 27).

Thus, some executors may find their task simplified, when they go to sell Estate land.

However, executors should still, if possible, attempt to obtain beneficiary approval to sales of Estate land. While this consent may not be strictly legally required under s. 50.5, getting advance consent can reduce headaches later. That is, a beneficiary could still later complain that land (in whose proceeds they have an interest) was sold for undervalue. Getting prior approval from beneficiaries, is a means to avoid any later complaints.

 

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: Campbell v. Cooper, 2017 Carswell Sask 334, 2017 SKCA 55

This article offers a case comment on a 2017 Saskatchewan decision, Campbell v. Cooper.

The decision reminds us that beneficiaries who have been wronged by an executor should remember to begin an action within 2 years of when they discover said wrong.

Facts:

  1. The plaintiffs in Campbell (the plaintiffs are hereafter Campbell”) were beneficiaries of farmland. Their father had died on March 17, 1990;
  2. Cooper, a Moose Jaw lawyer, was their father’s lawyer and also the executor of his will;
  3. Letters were granted on July 11, 1990 appointing Mr. Cooper as executor;
  4. The estate consisted in part of approximately nine quarters of farmland that were to be transferred to the plaintiffs;
  5. Cooper eventually transferred the approximate nine quarters to Messrs. Campbell on December 30, 2009, 19 years after death. This was far too long, and it is not clear why it took so long, nor why the beneficiaries did not apply in court to remove the executor for such a delay;
  6. On December 21, 2011, Messrs. Campbell issued a claim against Mr. Cooper in his personal capacity and in his capacity as executor;
  7. They alleged that his delay in transferring the farmland had caused them loss, because it forced them to deal with the land as if they were leasing it. They claimed, as a result, they could not use any of the farmland as security to expand their farm base and farm operation.
  8. Cooper died in September 2013 without ever accounting to Messrs. Campbell for his work as executor;
  9. Cooper submitted the lawsuit was statute barred. Mr. Cooper said that the cause of action arose on January 11, 1991. This January 11, 1991 date was clear from the plaintiffs’ own claim:

11  The January 11, 1991 date arises from the plaintiffs’ claim as follows:

  1. That our mother, Mary Catherine Campbell was named in the Will as Beneficiary and we understand that John Douglas Cooper as Executor, would have a responsibility under the Dependants Relief Act [sic] and/or under the Family Property Act [sic] to hold off and delay distribution of the Estate of our father, Russell James Campbell for at least six months after the issue of Letters Probate. He would be free to proceed with the distribution of the Estate after January 11, 1991.
  1. The Court outlined that there were three potential dates on which limitation period began to run, in this situation. However under any of these dates, the limitation period had still long since expired.
16  The above is based on the pleadings. However, looking beyond that, there are three possible dates from which the six-year limitation period could be calculated:

  1. From the testator’s date of death, being March 17, 1990 — six years later would have been March 17, 1996;
  2. From the granting of Letters Probate issued July 11, 1990 — six years later would have been July 10, 1996;
  3. From six months after Letters were granted (i.e. January 11, 1991) because of the necessity of the six month delay under the then s. 16(1) of The Dependants’ Relief Act, RSS 1978, c D-25 (since rep) and s. 30(2) of The Matrimonial Property Act, SS 1979, c M-6.1 (since rep) — six years thereafter would have been January 11, 1997. This appears to be the approach favoured by the plaintiffs.

17  In any event, the claim was issued on December 21, 2011, about 14 years after the last possible date of January 11, 1997. Nor have the plaintiffs advanced any pleading or argument that there was any recently discovered claim. They were clearly aware years before January 11, 1997 of their alleged cause of action.

  1. The Court outlined that there were three potential dates on which limitation period began to run, in this situation. However under any of these dates, the limitation period had still long since expired.

Lesson:

The lesson from Campbell is that beneficiaries should be diligent in suing to redress any wrong they have suffered. Here, the brothers should have realized back in or around 1991, that the executor was taking too long to transfer the land to them. If they felt they had suffered damages, they could have begun a lawsuit against the executor.

In reality, what the beneficiaries could also have done in 1991 was actually bring an application to force the executor to transfer the land. If the executor had failed to then abide by such an order, the beneficiaries could have removed him by obtaining a second court order. That would have placed someone new in the role, who would have properly transferred the land. If the above had occurred, there actually would have been minimal damages, as the land would have been transferred much earlier.

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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Can a complainant appeal the outcome of a professional regulatory investigation?

The process for most professional regulatory complaints is largely the same: (1) a complaint is lodged with the regulator; (2) an investigation is undertaken; (3) the investigating body either determines that no further action should be undertaken or the complaint is referred to a discipline hearing.

Of course, a complainant may be unhappy with the outcome of an investigation, particularly if the matter does not proceed to a discipline hearing. It has though been quite rare that a complainant takes steps to appeal the decision of the investigative body.

In a new decision, Cameron v APEGS, 2021 SKQB 318, the court considered an application for judicial review (which is somewhat like an appeal) by a complainant of a decision of an investigative body to not refer a matter to a disciplinary committee. The complainant raised several issues, including that the investigative body’s reasons were insufficient.  The complainant sought disclosure of the evidence compiled during the investigation.

The court dismissed the request for judicial review by the complainant. The court found that a complainant had a very limited right to seek judicial review. A complainant has a right to “procedural fairness” to be heard and for an investigation to be conducted.

The complainant though has no right to challenge the reasonableness of the decision of the investigative body. Further, the court indicated that an investigative body is not required to give reasons for its decision. A complainant is not entitled to receive a copy of the evidence compiled by the investigative body.

Essentially, a professional regulator’s investigation is akin to a police complaint. Ultimately, the Crown or police must determine whether charges will be laid. A complainant cannot force charges to be laid.

This decision supports the rights of regulators to control their own processes and conduct investigations as they deem appropriate.

Contacting a Lawyer on this Subject

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Sean Sinclair at 1-306-933-1367 or [email protected] to learn more.

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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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read more

James Steele presents to STEP Canada

James Steele presented on February 23, 2022, to STEP Canada, an internationally recognized body of trust and estate practitioners. James presented on the topic of contested estates, and how to navigate such disputes. Related News and Articles

read more

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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...

read more

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