QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 16 Date: 2016 01 12 Docket: SUR 172 of 2015 Judicial Centre: Swift Current IN THE MATTER OF THE ESTATE OF ANNE REITER, DECEASED BETWEEN: KIMBERLEY REITER and YVONNE POWELL and YVETTE McLACHLAN Named Executors for Anne Reiter RESPONDENTS Counsel: Jeff Taylor for the applicant Jack Hoffart for the respondents JUDGMENT DAWSON J. JANUARY12, 2016 [1] The applicant, Kimberley Reiter, applies to the court for an order that the respondents, Yvonne Powell and Yvette McLachlan, renounce their right to probate the last will and testament of Anne Reiter or, in the alternative, for an order that Yvonne Powell and Yvette McLachlan (a.k.a MacLachlan) be terminated as executors of the estate for Anne Reiter. The applicant seeks further order that the respondents be required to provide an accounting for the estate of Anne Reiter for the period of January 17, 2015 to the date that they cease to be executors of the estate of Anne Reiter. [2] The notice of application sets out the following grounds for the making of this application: Grounds for making this application: 4. caveat dated October 20, 2015 was filed against the Estate of Anne Reiter. 5. The Respondents, Yvonne Powell and Yvette McLachlan, were appointed the Executors of the Last Will and Testament of Anne Reiter, who died on January 17, 2015. 6. The Respondents failed to file the Last Will and Testament of Anne Reiter for probate within 60 days after the death of the Testator. 7. The Respondents, Yvonne Powell and Yvette McLachlan, were appointed the attorneys of Michael Reiter by Power of Attorney dated October 4, 2007. 8. The Respondents, Yvonne Powell and Yvette McLachlan, have provided an accounting for the accounts of Michael Reiter to the Applicant and to the Court for the period of January 1, 2014 to June 4, 2015 pursuant to the order of Justice L.L. Krogan issued the 4th day of June, 2015. 9. The accounting revealed that the Attorneys had abused their authority under the enduring power of attorney of Michael Reiter. 10. The Respondents, Yvonne Powell and Yvette McLachlan, have withdrawn as Attorneys for Michael Reiter as of September 4, 2015. 11. The Respondent, Yvonne Powell, withdrew $4,000.00 from the account of Michael Reiter on September 10, 2015, days after withdrawing as Attorney for Michael Reiter. [3] The respondents, Yvonne Powell and Yvette McLachlan, were appointed executors of the last will and testament of Anne Reiter. Anne Reiter died on January 17, 2015. There has been no application for probate of the last will and testament of Anne Reiter filed with the court. [4] Under the terms of the will of Anne Reiter, she bequeathed all of her property to her husband, Michael Reiter. Michael Reiter survived Anne Reiter. Michael Reiter passed away on October 14, 2015. Yvonne Powell and Yvette McLachlan were named as executors of the estate of Michael Reiter in the will of Michael Reiter. There is simultaneous application brought by the within applicant to remove Yvonne Powell and Yvette McLachlan as executors of the estate of Michael Reiter on SUR 172 of 2015. [5] Yvonne Powell and Yvette McLachlan were also the powers of attorney for Michael Reiter in his lifetime. On September 4, 2015, Yvonne Powell and Yvette McLachlan withdrew as attorneys for Michael Reiter. On September 10, 2015, Yvonne Powell withdrew $4,000.00 cash from Michael Reiter’s bank account. On September 28, 2015, this Court ordered Yvonne Powell and Yvette McLachlan to provide the Public Guardian and Trustee, within 90 days, an accounting of the estate of Michael Reiter for the period of October 4, 2007 to January 1, 2014. This Court also ordered that the respondents also provide an accounting for the period of May 25, 2015 to September 28, 2015. The court ordered that from October 28, 2015 forward, the assets of Michael Reiter would be managed by the Public Guardian and Trustee. [6] Yvonne Powell and Yvette McLachlan have provided an accounting for the period of January 1, 2014 to June 4, 2015 but as at the date this application was heard, they had not yet provided the balance of the accounting. They have provided the Public Guardian and Trustee with file boxes of bank statements, invoices and tax returns. [7] The affidavit of Yvette MacLachlan, filed in opposition to this application, indicated that the Mennonite Trust was assisting Yvette McLachlan and Yvonne Powell with the administration of the estate of Anne Reiter after her death. Ms. McLachlan attests that title to the property of Anne Reiter was held in the name of Anne Reiter and her spouse, Michael Reiter (the father of the applicant and respondents) and as such, Ms. McLachlan attests that it was not necessary to take out letters probate in the estate of Anne Reiter. [8] There was no evidence filed on this application as to what the assets of the estate of Anne Reiter were at the date of death or are presently. There is also no evidence as to the state of the administration of the estate of Anne Reiter. [9] The applicant asks that the respondents be removed as the executors of Anne Reiter’s estate. However, there is little evidence before me as to the reasons the applicant suggests they should be removed. The applicant appears to have been of the view that evidence filed on QB 33 of 2015 is evidence before the court on this application. It is not. If the applicant wishes the court to consider the evidence filed on QB 33 of 2015, the applicant will need the consent of the respondents for the court to consider that evidence or will need to file further evidence in affidavit form putting forward before the court such evidence as is relevant on this application. [10] The respondents have failed to provide any evidence to the court as to the status or assets of the estate of Anne Reiter. In order to determine the issues, it is necessary for the court to be provided with information as to the status of the administration of the assets of Anne Reiter. [11] Also, the applicant has failed to serve all those persons who are interested in this application which include the alternate executor under the will and all the named beneficiaries. As such, the applicant must prepare a notice of adjourned application returnable Wednesday, February 3, 2016 at 9:00 a.m. at the Swift Current Court House. The notice of adjourned application and all supporting material must be served on all the parties and filed in court three days prior to the adjourn date of February 3, 2016. [12] The respondents, Yvonne Powell and Yvette McLachlan, are ordered to serve and file on the applicant and on Michael William Reiter by Wednesday, January 27, 2016, list of the assets of Anne Reiter and an indication of the administration of the assets to date. [13] The application is adjourned to February 3, 2016 at 9:00 a.m. at Swift Current. Counsel must attend in person unless leave to appear by phone is obtained from the court. J. C. L. DAWSON
Wills and Estates – Executors – RemovalCivil Procedure – Wills and Estates – Applications – Requirements The applicant applied for an order that the respondents renounce their right to probate the last will of the deceased testator, Anne Reiter, or in the alternative, for an order that they be terminated as executors of her estate. The testator died in January 2015 and application for probate had not yet been made. The deceased’s will had bequeathed all her property to her husband, Michael Reiter, who died in October 2015. The respondents were named executors of his estate. A simultaneous application had been brought by the same applicant to remove the respondents as executors of his estate (see: 2016 SKQB 15). The applicant had failed to serve the respondents with notice of this application or the alternate executor and beneficiaries named in the will. In addition, the applicant had misunderstood that she could rely upon evidence filed in another action that was also before the court in this application. HELD: The application was adjourned. The applicant was instructed to serve notice of the application and the adjournment on the alternate executor and the named beneficiaries. As the applicant had not understood that evidence from another action could not be considered by the court on this application, the applicant was also required to file further affidavit evidence. She was instructed to serve the material on the respondents, the alternate executor and the beneficiaries.