Seib Estate, 2012 ABQB 126

Court of Queen ’ s Bench of Alberta Citation: Seib Estate, 2012 ABQB 126 Date: 20120224 Docket: ES01 109816 Registry: Calgary Court File Number ES01 109816 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Calgary Estate Name George Emil Seib Applicant (Plaintiff) Brenda Weatherby Respondents Pamela Jean Garrow, Kira Seib c/o Julie Marie Seib _______________________________________________________ Endorsement of the Honourable Madam Justice J.B.

Veit _______________________________________________________ [ 1 ] Pamela Garrow, daughter of the late George Seib, challenges her father’s last will which divides 90% of his estate equally between Ms. Garrow and the only child of Ms. Garrow’s late brother who was the only other child of George Seib. Ms. Garrow asserts that her father either lacked testamentary capacity when he made his last will, or that he was unduly influenced by the executrix named in the will, Brenda Weatherby, who is Mr. Seib’s niece. In Mr. Seib’s last will, Ms.

Weatherby receives 5% of the estate in recognition of her role as personal representative. Mr. Seib’s sister receives the remaining 5% of the estate. The estate’s assets are illiquid. The size of the estate is approximately $1 million. Because of Ms. Garrow’s challenge to the will, the personal representative must prove the will in solemn form. [ 2 ] Because the will must be proved in solemn form, it is expected that some considerable pre-trial process will be undertaken: questioning on affidavits, assessment of expert evidence, etc.

Perhaps having in mind the ominous warning about the Court of Chancery in Charles Dickens ’ Bleak House, “ Suffer any wrong that can be done you, rather than come here ” , prudently, the parties have agreed to provide the personal representative with capacity to deal with the estate property during the period while probate has not yet been

determined. They have agreed on much of the authority which the personal representative can exercise during that period, such as the sale of the deceased ’ s Calgary real estate. However, there are two matters on which they are not agreed. [ 3 ] The executrix asks for the following two powers which are contested by Ms. Garrow: 6. The Executor may pay all fees and disbursements to date only, as related to the preparation of the Probate Application herein, from the assets of the Estate; 9.

The Executor is permitted to pay her legal fees and disbursements related only to responding to a challenge or challenges to the Will submitted for Probate herein, from the Estate assets; [ 4 ] Counsel for the infant beneficiary supports the personal representative ’ s position, on the basis that both powers are normal and proper powers for a personal representative and that the court retains some financial control over the personal representative as a result of its ability to deal with the 5% of the sizeable estate earmarked for the executrix. [ 5 ] Ms.

Garrow argues that the personal representative should not be entitled to any payments from the estate while the representative ’ s status is being challenged. Although she has not yet filed any evidence in support of her allegations of lack of testamentary capacity and undue influence, Ms. Garrow notes that, in 1999, the deceased had executed a will at a lawyer ’ s office, in which will he divided his estate equally between his two children, Ms. Garrow and her late brother. In 2008, the deceased was hospitalized after he suffered a stroke; when he was discharged from hospital, he went to live with Ms. Garrow.

In 2009, the deceased ’ s son died, leaving one child, a daughter who is the minor respondent on this application. In early 2010, the deceased executed a new will in which Ms. Garrow received all of the deceased ’ s estate, but for a $25,000.00 gift to the only child of her deceased brother. Relatively shortly before his death, the deceased executed a new will, the terms of which were outlined at the outset. [ 6 ] As noted at para. 71 of the recent Tatum decision, 2011 ABQB 253 , compensation for personal representatives and reimbursement of expenses incurred by them are dealt with in

Schedule 1,

Part 1 of the Surrogate Rules. The disbursements and payments anticipated in paras. 6 and 9 of the proposed order come within the anticipation of the rules; of particular note here is the illiquid quality of the estate, which will require considerable management, and the size of the estate. [ 7 ] As to the legal fees and disbursements, I am of the view that those are also within the normal ambit of estate re- imbursement: see, for example, para. 19 of Brydon v Malamas 2009 B.C.J.

No. 132 , at least in a situation such as this one where the personal representative is not defending a stake as beneficiary against the person, here Ms. Garrow, who is challenging the will. [ 8 ] For those reasons, I approve the form of order presented by the personal representative. [ 9 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 22 nd day of February, 2012. Dated at the City of Calgary, Alberta this 24 th day of February, 2012. “ J.B. Veit ”

J.B. Veit J.C.Q.B.A. Appearances: Mark C. Freeman, agent for Lamoureux Woolstencroft Stevenson LLP for the Applicant, Brenda Weatherby James P. Flanagan, McLennan Ross LLP for the Respondent, Pamela Jean Garrow T. Catherine Christopher, Q.C., Alberta Justice Office of the Public Trustee for the Respondent, Kira Seib