Yewchuk (Estate), 2012 ABQB 16

Court of Queen ’ s Bench of Alberta Citation: Yewchuk (Estate), 2012 ABQB 16 Date: 20120112 Docket: ES03 128636 Registry: Edmonton Court File Number ES03 128636 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Pauline Yewchuk Applicant Olga Grimm _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A.

Graesser _______________________________________________________ Nature of Application [ 1 ] This is an application following the order of Read J. dated June 7, 2011. [ 2 ] Pauline Yewchuk died on April 8, 2008 at age 95. Her will left her estate to be divided equally among her four surviving daughters. She named her daughters, Olga Grimm and Eunice Decker, as executors of her estate. [ 3 ] According to Ms. Decker, Ms. Grimm took advantage of an illness Ms. Decker had shortly after their mother passed away, and applied for probate as the sole executor.

[ 4 ] Ms. Yewchuk’s estate consisted of funds held by the Public Trustee in the approximate amount of $18,000.00. [ 5 ] Ms. Yewchuk had been hospitalized in March or April, 2005. The Public Trustee became trustee of her estate in June, 2005 after Ms. Yewchuk had been diagnosed with moderate dementia. [ 6 ] Read J.’s order followed an application by Ms. Decker to require Ms. Grimm to pay her 1/4 of the estate. Ms. Grimm argued at that application that Ms. Decker had depleted their mother’s estate before Ms. Yewchuk was institutionalized some years before her death. According to Ms. Grimm, Ms.

Yewchuk had taken a substantial amount of money for her and her immediate family’s benefit over the period from their father’s death until their mother had to be put into a nursing home. At the time Ms. Yewchuk was placed in a nursing home, her funds, which had once been in the tens of thousands of dollars, had been depleted. [ 7 ] After reading conflicting affidavits, Read J. directed that Ms. Grimm account for the distribution of the estate; that she pay the equivalent of 1/4 of the value of the estate into court no later than August 1, 2011; that Ms. Grimm had leave to bring an application to require Ms.

Decker to account for monies received by her from their mother between 2003 and 2005; and in the absence of such an application, that the 1/4 share be paid out to Ms. Decker. [ 8 ] Ms. Grimm brought the application for an accounting, and Ms. Decker provided an explanation of some 88 cheques dated January 19, 2004 to May 3, 2005. Those were the only cheques still available for review, because of the passage of time. Ms. Decker’s accounting was contained in an affidavit sworn October 26, 2011. [ 9 ] Ms.

Grimm also complained about cash withdrawals in 2003-2005 totaling nearly $20,000.00 but Read J. made no specific directions concerning those withdrawals and there is no evidence that Ms. Yewchuk did not get the money herself. There is no evidence that Ms. Decker took the proceeds of the cash withdrawal for herself. [ 10 ] Ms. Grimm brought the matter back to court on November 10, 2011 by way of a telephone application. When the application was heard, Ms. Decker did not attend. [ 11 ] Ms. Grimm subsequently filed an affidavit of service swearing that she emailed Ms.

Decker with the details of the return date on October 28, 2011. I accept that as valid service. Accounting [ 12 ] Ms. Decker’s accounting provided no receipts. All of the cheques in question were paid to her, her husband, or her son. Ms. Decker provided a general description (“groceries”, “gave to grandson”, “shopping”, “utilities”, “medication”, etc.) of what the monies were spent on. The cheques in question were generally in round numbers. [ 13 ] The cheques in 2004 and 2005 totaled over $10,000.00. [ 14 ] A number of descriptions given were “don’t remember”. For those, I am satisfied that Ms.

Decker has failed to properly account for the funds. [ 15 ] For the cheques where Ms. Decker was able to provide an explanation (albeit without details and without receipts), it is somewhat remarkable that she would be able to remember the specifics of cheques received by her from her mother 6 - 7 ½ years ago. It is also curious that the amounts are generally round numbers.

[ 16 ] In the absence of receipts and documentation, it is difficult to conclude that the funds have been properly accounted for. However, there is also Ms. Decker’s sworn evidence that she had taken care of her parents “for the past 20 years”. She deposed that as her mother did not drive, she was responsible to taking her mother for medical appointments, shopping and “life needs”. There is no evidence to the contrary. She denies forging her mother’s signature on any cheques. [ 17 ] There is no evidence that Ms. Yewchuk was not capable of managing her affairs before she was hospitalized in May, 2005.

The medical assessment used in support of the Public Trustee’s application for trusteeship in June, 2005 states that Ms. Yewchuk suffered from “moderate dementia”. There is no indication as to when the onset of the dementia was, or when it may have progressed to the point of inability to manage her financial affairs. [ 18 ] A person who is capable of managing his or her affairs may make gifts to one child to the exclusion of others, and to one grandchild or great grandchild to the exclusion of others. A person capable of managing his or her affairs is able to give gifts.

There is also a presumption of advancement in favour of children with respect to gifts from their parents. [ 19 ] It is clear that there is a significant distrust of Ms. Decker by Ms. Grimm. Nevertheless, distrust alone cannot displace the sworn evidence of Ms. Decker. [ 20 ] There are certainly questions left arising out of Mrs. Decker’s relationship with her mother. Why a line of credit was maximized with no apparent ability to repay it is not explained. But that caused no direct loss to the estate as the bank apparently wrote off the debt. [ 21 ] Why Ms.

Decker required a new coffee table of $500.00 in February, 2005 is unclear. Nevertheless, in the absence of evidence that she was then incapable of managing her affairs and that Ms. Decker was aware of that, I cannot conclude that those funds have not been accounted for. Result [ 22 ] Ms. Decker has not accounted for $1,160.00. That amount should be deducted from the 1/4 share of her mother’s estate, and should be returned to Ms. Grimm for distribution to the remaining 3 beneficiaries. The balance remaining in court should be paid out to Ms. Decker. [ 23 ] I recognize that this is a

summary determination of these issues. Having regard to the amounts involved, there is little sense in directing the trial of issues remaining between Ms. Decker and Ms. Grimm on behalf of the Estate. [ 24 ] I note that this is not a situation where Ms. Decker was an appointed attorney or trustee. Her mother was not subject to any legal restrictions on her ability to manage her affairs until after all of these transactions had taken place. Had Ms.

Decker been in a position before Read J.’s order where she was a trustee or required to account, her after-the-fact accounting, with no receipts, would have been wholly unsatisfactory and unacceptable. Heard on the 10 th day of November, 2011. Dated at the City of Edmonton, Alberta this 10 th day of January, 2012.

R.A. Graesser J.C.Q.B.A. Appearances: Olga Grimm Appeared on her own behalf