QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 388 Date: 2017 12 21 Docket: SUR 130 of 2016 Judicial Centre: Battleford ESTATE OF EDNA MAY JONES Counsel: Donna Jones on her own behalf Nicholas J. Stooshinoff, Q.C. for Kent Jones and Rodney Argue Evan Jones on his own behalf FIAT SCHERMAN J. December 21, 2017 Introduction [1] The applicants Kent Jones [Kent] and Rodney Argue [Rodney] ask the Court to remove the respondent Evan Jones [Evan] as an executor of the estate of Edna May Jones. Their grounds are that Evan has brought an application that effectively challenges the validity of the Will he is presently an executor of and he is refusing to co-operate in taking the steps necessary to administer the estate and carry out the directions contained in the Last Will and Testament [Will] of Edna May Jones as admitted to probate. The Factual Background [2] On July 13, 2016, Evan, Kent and Rodney filed with the Court an application for grant of probate to them in respect of an October 15, 2015 Will of Edna May Jones [Edna], who died on November 19, 2015. Evan and Kent are sons of the late Ms. Edna Jones and Rodney is nephew. The three were designated in the Will as executors. Each swore an affidavit stating they believed the Will to be the Last Will and Testament of Edna and that they would faithfully administer the property and legacies contained in the Will. [3] The Will directed, inter alia, that: i. Ms. Edna Jones’ interest in the NW 20-26-16 W3 be transferred to Kent; ii. the NW 29-24-14 W3 be transferred to Evan and the NE 30-24-14 W3 be transferred to Kent with direction to the executors that prior to making the transfers they should determine the values of these parcels and “may make such subdivisions or payments to equalize the values as may be required to ensure each gets the same value and that access to my son Kent Jones’ other quarter is maintained”; iii. specific equal financial bequests be made to Ms. Edna Jones’ grandchildren; and iv. the remainder, rest and residue of her estate was to be divided equally between her two sons, Evan and Kent. [4] The schedule of assets filed with the application for probate showed that Edna had one-third interest in the NW of 20. Kent had previously purchased the other two-thirds interests in the NW of 20 from two aunts (Edna’s sisters) and had been farming it, renting Edna’s one-third interest. This schedule of assets valued the NW of 29 at $181,000 and the NE of 30 at $301,000. Evan’s home site was located on the NE of 30. [5] Some financial bequests to grandchildren have been made and partial distributions to Kent and Evan have been made. At some point differences arose between Kent and Evan, the catalyst for and details of the differences am not able to determine from the evidence before me. However, an understanding of such differences is not necessary for, and indeed has no relevance to, the determinations make. [6] On October 13, 2017, Evan and his wife, Donna Lee Jones [Donna], filed notice of application with the Court seeking revocation of the grant of probate, and an order that the Will be proven in solemn form and related relief. Among the allegations made in support of this application are that: a. Edna lacked testamentary capacity when she executed the Will; b. fraud/forgery of the Will and the testator’s signature; and c. suspicious circumstances. [7] Faced with this, Kent and Rodney brought an originating application seeking, inter alia, an order removing Evan as an executor. This application is based upon the grounds that: i. by challenging the validity of the Will and seeking revocation of the grant of probate, Evan is in conflict of interest position and in breach of the undertaking he gave to the Court in his affidavit in support of the grant of probate to faithfully administer the property of the testator and the legacies contained in the Will, and ii. by his words and actions Evan has made it clear that he is not prepared to carry out the directions contained in the Will and he is refusing to co-operate with the other executors in taking steps necessary to properly administer the estate. [8] On December 14, 2017, these applications came before me in Chambers in Battleford. Donna took the position that she had status and sought to represent herself and her husband Evan on their application and in opposition to the application brought by Kent and Rodney. She based her position that she could represent and speak for Evan on the grounds that she had obtained power of attorney from Evan. [9] held that while the power of attorney may give her the power to make decisions for Evan in respect of legal matters, including instructing counsel, she was not entitled to represent Evan before the Court. In this respect relied upon s. 30 of The Legal Profession Act, 1990, SS 1990-91, L-10.1, which directs that no person other than member of the Law Society of Saskatchewan holding current practice certificate may practise at the bar of any court in Saskatchewan or commence, carry on or defend any action or proceeding in any court. [10] heard submissions by Donna in respect of whether she herself had status as proper party to the proceedings and held that since she was neither named beneficiary under the Will nor potential beneficiary in the event of an intestacy she had no status or right to be party to the proceedings. struck her out as an applicant in the notice of application that she and Evan had filed. [11] Having held that Donna had no status and that she was not entitled to represent Evan on the applications, the Court then contacted Evan by telephone so that he could make submissions on his own behalf. In respect of his application to revoke the grant of probate in respect of the Will, informed Evan that had concerns that the materials he filed suggested profound misunderstanding of the requirements at law to obtain revocation of probate and to have proof in solemn form ordered. suggested he may wish to consider obtaining legal advice. Evan advised the Court he was requesting an adjournment of his application so that he could seek legal advice. Counsel for Kent objected to the granting of such an adjournment. Since Evan was unrepresented and to give him an opportunity to put his best case forward, granted the adjournment sought and ordered Evan’s application be adjourned sine die returnable on 14 days’ notice. [12] then proceeded to hear submissions from Mr. Stooshinoff, counsel for Kent and Rodney, on their application to remove Evan as executor and Evan’s submissions in opposition to that application. The Applicable Law [13] This Court has the jurisdiction to remove an executor of an estate both pursuant to its inherent jurisdiction and pursuant to s. 17 of The Administration of Estates Act, SS 1998, A-4.1 [Act]. See Ocean Man Trust, Re (1993), 1993 CanLII 6781 (SK CA), 113 Sask 179 (CA); Figley Figley, 2012 SKCA 36 (CanLII), 393 Sask 44; and Sinclair Sinclair, 2013 SKCA 123 (CanLII), 427 Sask 36. [14] In the Court of Queen’s Bench decision of Whitworth Estate Whitworth, 2016 SKQB 369 (CanLII) [Whitworth], Mills J. stated, at para. 5, that s. 17 of the Act is the basis most applicants rely on to remove administrators or executors. He further stated that although “[n]o definition of ‘other special circumstances’ has been provided, however, it would seem obvious that the considerations respecting removal of an executor under the inherent jurisdiction of the Court would be included in the concept of ‘other special circumstances’”. He also stated as follows: In Sinclair and Figley the Court spoke to the factors to be considered in determining whether an executor should be removed from administering an estate. Those factors included: (1) Mistake, neglect of duty or inaccuracy of conduct of trustees sufficient to endanger the trust property; (2) Want of honesty; (3) Want of proper capacity to execute the duties of executor; (4) Want of reasonable fidelity; (5) The exercise of discretion to remove an executor is not to be undertaken lightly; (6) The overriding duty of the Court is to ensure the administration will be properly executed; and (7) The ultimate concern must be for the welfare of the beneficiaries. [15] In his decision in Hazlehurst Estate Re, 2007 SKQB 343 (CanLII), 301 Sask 121, Mills J. held that where there is dissension or disagreement between the executors as to the manner in which estate assets are to be administered and there seems no prospect for settling those differences that the existence of such dissension or disagreement is basis for removing an executor or trustee. Analysis [16] I find that the circumstances of this case constitute “special circumstances” within the meaning of s. 17 of the Act and that, as stated by Mills J. in Whitworth, the overriding duty of the Court to ensure the administration will be properly executed consistent with an ultimate concern for the welfare of the beneficiaries. [17] In his January 4, 2016 affidavit in support of grant of probate, Evan swore he believed the Will to contain the original Last Will and Testament of Edna May Jones and that he would faithfully administer the property and legacies contained in the Will. Now he is by his application and actions refuting those obligations to the estate and the Court and is challenging the very existence of valid will. This places him in profound conflict of interest position. [18] Evan cannot on one hand attack the validity of the Will while at the same time claim right to be an executor of that Will with all of the obligations that entails. As an executor who was given grant of probate, he is obligated to carry out the directions contained in the Will. By making the application he has, he is effectively stating that he is not prepared to give effect to the directions in the Will. The affidavit evidence of Kent and Rodney satisfies me that Evan is refusing to co‑operate in proper administration of the Will. [19] Evan is entitled to challenge the validity of the Will, as he has done in his application, but he is not entitled at the same time to remain as an executor of the Will. Unless and until the grant of probate is set aside and proof in solemn form is ordered by this Court, the grant of probate remains operative and carries with it the obligation of the executors to continue to administer the estate in accordance with the directions of the Will. It is clear that this is something that Evan will not do and thus he must be removed as an executor. [20] There is no evidence before me that suggests that either of Kent or Rodney have acted contrary to their obligations to administer the estate in accordance with the directions contained in the Will. Further, there is no basis to conclude that they will not continue to properly do their duty. [21] I am satisfied that this is a case in which I should exercise my jurisdiction to remove Evan as an executor of the estate of Edna May Jones and I order that he is removed as an executor in the grant of probate ordered by Gabrielson J. on July 20, 2016, and that Kent Jones and Rodney Argue shall continue as executors pursuant to that grant. [22] Having before this Court an application seeking revocation of the grant of probate, and an order that the Will be proven in solemn form and related relief, it is incumbent on Evan to act promptly in respect of his application, should he decide to proceed with that application. While valid grant of probate remains in existence, it is incumbent on the executors to properly administer the estate. [23] With view to balancing the interests of efficient and proper administration of the estate and to give Evan an opportunity to advance his application, direct Kent Jones and Rodney Argue to take no steps to distribute assets of the estate to beneficiaries or otherwise finalize the administration of the estate until after February 15, 2018. This will give Evan an opportunity to bring his application back before the Court for determination. The judge deciding such an application could, if he or she deems it appropriate, extend this direction. If Evan has not given notice to bring his application back before the Court by February 15, 2018, then, subject to further order of this Court, this direction shall expire. [24] My direction for Kent Jones and Rodney Argue to take no steps to distribute assets of the estate or otherwise finalize the administration of the estate until after February 15, 2018, does not operate to prevent the executors from: a. paying outstanding obligations; b. filing tax returns and making payment of tax obligations; or c. selling and transferring title of assets of the estate, with the exception of those parcels of land identified in paras. 2(d) and (e) of the Will. Conclusion and Orders [25] For the reasons set forth above, I order as follows:a. Evan Jones is removed as an executor in the grant of probate ordered by Gabrielson J. on July 20, 2016, and Kent Jones and Rodney Argue shall continue as executors pursuant to that grant;b. Kent Jones and Rodney Argue shall take no steps to distribute assets of the estate to beneficiaries or otherwise finalize the administration of the estate until after February 15, 2018. [26] While costs of the application were requested in the originating application of Kent Jones and Rodney Argue, submissions were not made in respect thereof. Accordingly, retain jurisdiction on the matter of costs, and on notice to Evan Jones will hear an application in respect of this matter. For the information of counsel and Evan Jones, am scheduled to do Battleford chambers on January 25, 2018, or telephone application can be scheduled through the Registrar.
HELD: The application was granted. The court ordered the removal of the respondent as an executor in the grant of probate and ordered that the applicants remain as executors but that they should take no further steps to distribute the assets of the estate. It found that there were “special circumstances” within the meaning of s. 17 of The Administration of Estates Act. The respondent was entitled to challenge the validity of the will but not entitled to remain as an executor.