Yaworski Estate v Bennett, 2012 ABQB 392

Court of Queen ’ s Bench of Alberta Citation: Yaworski Estate v Bennett, 2012 ABQB 392 Date: 20120614 Docket: ES03 126492 Registry: Edmonton Between: David J.

Turner, Administrator of the Estate of Helen Yaworski Applicant - and - Holly Bennett, Patricia Pariseau, Todd Yaworski, Ted Yaworski, Bonnie Yaworski, and Geri Spenrath Respondents Todd Yaworski, Ted Yaworski and Sonya Demers Personal Representatives Sonya Demers, Todd Yaworski, Ted Yaworksi, Bonnie Yaworski, Geri Spenrath, Holly Bennett, Patricia Pariseau Beneficiaries _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________

[ 1 ] The Administrator of the Estate of Helen Yaworksi applies for direction as to how certain claims against the estate should be dealt with. [ 2 ] Helen Yaworski died on September 4, 2005. Probate of her Will dated April 21, 2004 was granted on January 8, 2008 to the personal representatives named in the Will, Todd Yaworski, Ted Yaworski and Sonya Demers. [ 3 ] Ms. Yaworski left all her property to her personal representatives on certain trusts.

After payment of debts and expenses, the personal representatives were requested to comply with any lists with respect to specific bequests that might be attached to or found with the Will. None were. [ 4 ] The Will further directed the personal representatives to pay the rest and residue of the estate to seven of Ms. Yaworski ’ s eleven children in equal parts. The seven children named were: Patricia Pariseau, Holly Bennett, Sonya Demers, Bonnie Yaworski, Todd Yaworski, Ted Yaworski, and Geri Spenrath. The Will also expressly provided that the four remaining children were to receive no share of the estate.

These four children were: Judi Didechko, Janice Callihoo, Cecilia Yaworski, and Mark Yaworski. [ 5 ] Disputes arose among the personal representatives. On April 7, 2009, when the disputes could not be resolved, the Court appointed David J. Turner of Exelby & Partners Ltd. Administrator of the estate. [ 6 ] Mr. Turner has completed his administration of the estate save for receipt of a notice of assessment and a clearance certificate from the Canada Revenue Agency. Realization of estate assets has produced $219,693.73 after payment of expenses. [ 7 ] In this application Mr.

Turner initially proposed an interim distribution among the beneficiaries. He was of the view that at least $100,000.00 should be retained pending receipt of the assessment and clearance certificate to cover potential tax liability and further administration costs. The remainder could be distributed. [ 8 ] However, one of Ms. Yaworski ’ s children who is not a beneficiary, Mark Yaworski, objected to any interim distribution because he has an unresolved claim against the estate which is being litigated (Action 0703 16513).

The amount of that claim is far in excess of the proceeds of the realization of estate assets. [ 9 ] I do not understand Mr. Turner ’ s position to be that an interim distribution ought to be made despite the unresolved litigation. Rather Mr. Turner, through his counsel and at the Court ’ s direction, has attempted to facilitate steps which could resolve the litigation. There is hope that a resolution can be achieved while the Administrator waits for the CRA clearance certificate. As I understand the situation, the proposal for an interim distribution has, in effect, been withdrawn for the time being. [ 10 ] Mr.

Turner does, however, seek the Court ’ s direction to deal with certain matters which he has termed, “ pre-appointment debts ” of the estate. There are seven such matters. Parties interested in the estate have taken divergent positions with respect to several of the matters. Those positions are described in written submissions, some in the form of affidavits, filed by six of the seven beneficiaries: Todd Yaworski, Patricia Pariseau, Holly Bennett, Ted Yaworski, Bonnie Yaworski, and Sonya Demers.

Two children who are not beneficiaries, Cecilia Yaworski and Mark Yaworski, have also filed affidavits expressing views on some of the issues. Gold Ring [ 11 ] A gold ring which originally belonged to Mr. Peter Yaworski (the father of the beneficiaries of the estate of Ms. Yaworski) was found among Ms. Yaworski ’ s possessions. In a letter to the Administrator, Ted Yaworski claimed that Ms. Yaworski gave this ring to him shortly after Mr. Yaworski ’ s death. Ted Yaworski was 14 at the time. Nine years later, when he was to be married, Ted Yaworski asked for the ring.

It could not be located at that time though Ms. Yaworski and one of her daughters looked for it. It was however located after Ms. Yaworski ’ s death. On the basis that the ring was given to him, he now claims it.

[ 12 ] Ted Yaworski does not identify which of his sisters was involved in the search for the ring at the time of his marriage. None of his sisters has acknowledged that she was involved. [ 13 ] The Administrator sought corroboration of Ted Yaworski ’ s claim from the other family members. Ted Yaworski produced an e-mail written to him by Todd Yaworski in which Todd Yaworski corroborates Ted Yaworski ’ s claim and says he would be prepared to send that corroboration to the Administrator. There is no evidence he ever did so. In court he stated that he supported Ted ’ s position.

Support does not constitute corroboration. In the affidavit he filed himself in this application, Todd Yaworski does not mention the gold ring. [ 14 ] Patricia Pariseau objects to Ted Yaworski ’ s claim. She says that if the ring contains a garnet stone then it is a ring that her mother promised to her because she and her father had the same birth stone – garnet. [ 15 ] The ring has been appraised at $160. [ 16 ] Neither Ted Yaworski ’ s claim nor Patricia Pariseau ’ s claim to the ring can be accepted. The Alberta Evidence Act , c.

A-18, s. 11 provides that claims against the administrator of a deceased person cannot be honoured unless corroborated by other material evidence. There is no corroboration of either claim. But even if it were accepted that Ms. Yaworski once expressed an intention to gift the ring to either of the claimants, the law is that a gift of a chattel is not complete until the chattel has been delivered to the donee. The ring was never delivered to either claimant.

The gift, if there was one, was never complete. [ 17 ] I direct the Administrator to place the names of the seven beneficiaries in a hat, draw a name, and give the ring to the beneficiary whose name is drawn. This procedure was suggested by the Administrator and accepted by three of the seven beneficiaries and not rejected by a fourth. The eventual distributive share of the beneficiary to whom the ring is given should be charged $160. Minsos Accounts [ 18 ] The three personal representatives appointed in the Will retained a solicitor, Ove Minsos, to assist them with the administration of the estate. Mr.

Minsos rendered two accounts: one dated September 21, 2006 for $2881.64 and one dated December 2, 2008 for $493.50. [ 19 ] The materials indicate that when disputes arose among the personal representatives Mr. Minsos was discharged and other lawyers were retained. Mr. Minsos sent his accounts to the new lawyers on the trust condition he would be paid when there was sufficient funds in the estate. The accounts had not been paid by the time the Court appointed Mr. Turner. [ 20 ] Todd and Ted Yaworski both object to the payment of Mr. Minsos ’ accounts.

Todd Yaworski objects “ . . . due to a conflict of interest as he [Mr. Minsos] was acting as estate lawyer and lawyer to an executor of the same estate which prevented him from being impartial. ” Ted Yaworski ’ s affidavit says approximately the same thing. Sonya Demers and Bonnie Yaworski both support payment of Mr. Minsos ’ accounts. [ 21 ] That Mr. Minsos acted for Ms. Demers or her husband did not create a conflict of interest. There is no suggestion in the materials that the matters on which Mr. Minsos was retained for Ms. Demers or her husband had anything to do with the estate.

It is certainly not rare for a lawyer to act for one of several personal representatives on some matters and then to act for all of them with regard to an estate. Further, it appears that Mr. Minsos was a logical choice to assist the executors with the administration of their mother ’ s estate. He had drafted the Will and was a witness to it. Nothing could be more routine than his being retained despite his previously having provided services to one of the personal representatives. [ 22 ] I reject the suggestion that Mr.

Minsos ’ duties included keeping the peace among the three personal representatives and that his failure to do so is either surprising or has any significance.

[ 23 ] I have reviewed his accounts and they are clearly reasonable. [ 24 ] I direct the Administrator to pay them. de Villars Jones Accounts [ 25 ] After disputes arose among the personal representatives and Mr. Minsos was discharged, Ted and Todd Yaworski retained counsel to assist them, and Sonya Demers retained counsel to assist her, and two of the beneficiaries who were not personal representatives retained counsel to assist them.

I believe there may have been other counsel involved at various times but, as I understand it, the last (if not only) counsel retained by Ted and Todd Yaworski was Anne de Villars, Q.C. of de Villars Jones. Ms. de Villars acted for Ted and Todd Yaworski at the time of the Order appointing Mr. Turner as Administrator, April 7, 2009. [ 26 ] On October 15, 2009 Ms. de Villars wrote to Mr. Turner ’ s counsel enclosing copies of her account to Todd and Ted Yaworski, which totalled $9303.17 and requesting, “ . . .

As part of any interim or final distribution of the estate, please provide for payment of this account from my clients ’ share. ” It appears that Ms. de Villars sent a copy of that letter to each of Todd and Ted Yaworski. [ 27 ] Mr.

Turner asks for direction to pay the de Villars Jones account as a reduction of the distribution amount that would otherwise be paid to Todd and Ted Yaworski. [ 28 ] Todd and Ted Yaworski both submit that the account should be paid out of the estate - not just out of their shares of the estate – on the basis that they were incurred in their capacity as personal representatives of the estate. [ 29 ] My Order of April 7, 2009, though not a consent order, resulted from negotiations between Ms. de Villars, Ms. Amonson (counsel for Ms. Demers) and counsel for two beneficiaries.

All three counsel approved the form of order. None of them opposed the granting of the Order. The Order was silent as to the costs of the proceedings leading to its being granted. Neither Ms. Amonson nor counsel for the two beneficiaries were paid from the estate. [ 30 ] The cause of the dispute which resulted in it being impossible for the personal representatives to continue to cooperate together in the administration of the estate is not clear and is itself probably a matter of dispute.

The personal representatives chose not to resolve the question of the costs they had incurred by reason of their dispute at the time they agreed to a route to overcome it. In my view it is too late now for them to take the position that the estate should pay.

I reject the submission of Todd and Ted Yaworski that the estate should pay the de Villars Jones account. [ 31 ] As to whether the Administrator should pay the de Villars Jones account and charge the shares of Todd and Ted Yaworski, I direct the Administrator not to do so until there is an interim or final distribution approved by the Court or agreed by all the beneficiaries and not to do so unless he has first obtained specific written direction from each of Todd and Ted Yaworski to do so.

I make this latter direction because I can see nothing which would give authority to the Administrator to pay a debt of Todd and Ted Yaworski from their shares of the estate without their consent. Todd Yaworski ’ s travel costs to “ estate house ” Todd Yaworski ’ s claim for cost of insurance of “ estate house ” Todd Yaworski ’ s claim for lawn care costs and cost of a tarp used during shingle replacement on the “ estate house ” [ 32 ] Todd Yaworski claims the costs of his trips to the “ estate house ” from December 2005 to November 2008. He claims he travelled 4980 km. in that regard.

He claims vehicle expense at the rate of $0.40 per km. for a total of $1992.00.

[ 33 ] Todd Yaworski also claims that he paid $1367.97 insurance premiums on the “ estate house ” and $85.60 in respect of lawn care and a tarp for the “ estate house ” . He seeks reimbursement. [ 34 ] The Administrator denied these claims because the house in question, 5004 - 107A Avenue Edmonton, was an asset of the estate of Peter Yaworski (the parties ’ father) and not an asset of the estate of Helen Yaworski. As I understand it Helen Yaworski continued to live in the house after her husband ’ s death. I am not certain whether Ms.

Yaworski was formally given a life estate in the house, or whether she lived there because of a Dower interest, or whether the arrangement was entirely informal. I am not certain either whether she was living in the house just prior to her death or whether she had moved to a care facility. In any event I understand that her possessions remained in the house until long after her death. The disputes among the personal representatives and beneficiaries delayed disposition of the possessions and sale of the house. The house was not sold until three years after Ms.

Yaworski ’ s death. [ 35 ] In an Order granted by Bielby J. in these proceedings on January 30, 2009 some expenses relating to the house were charged 1/3 to the estate of Peter Yaworski and 2/3 to the estate of Helen Yaworski. The materials indicate that the reasoning for this apportionment of expenses was related to the idea of the “ executor ’ s year ” . There is an informal “ rule of thumb ” that an executor should complete the administration of the estate within a year of the death.

It was reasoned, as I understand the materials, that the Peter Yaworski estate in effect permitted the Helen Yaworski estate to occupy the house for the year following her death at its expense. When the executor ’ s year was over, it was reasoned, the house expenses should be charged to the Helen Yaworski estate since its continued use of the house was extraordinary. [ 36 ] I accept this reasoning.

It justifies charging the estate of Helen Yaworski with the expenses incurred after the first anniversary of her death, September 4, 2006, even though they relate to a house which is not an asset of the estate. [ 37 ] As to Todd Yaworski ’ s travel cost claim, on the records provided he travelled 3075 km. after September 4, 2006 to attend to things in the house. Some of his attendances appear to have related to Ms. Yaworski ’ s possessions more than maintenance of the house. I find his claim of $.40 per km. reasonable. He should be reimbursed $1230 in relation to his travel costs after September 4, 2006.

Though some of his travel to the house in the first year following his mothers ’ death was to attend to matters of concern to her estate and some of the trips were to attend to the house, in my view it is fair that he not recover reimbursement for travel in that year because he was one of the personal representatives who did not complete administration of his mother ’ s estate within the executor ’ s year. [ 38 ] The insurance expenses were all incurred after September 4, 2006. So were the lawn care and tarp expenses. They should be reimbursed to Todd Yaworski.

I recognize that some parties are of the view there was a duplication of insurance expense. The materials do not establish that, if this was the case, it was anything but an error. They do not establish that reimbursement of Todd Yaworski ’ s expenditure is inappropriate. [ 39 ] Accordingly I direct the Administrator to pay Todd Yaworski a total of $2683.57 in respect of these items as an expense of the estate of Helen Yaworski.

Todd Yaworski ’ s claim for EPS cost [ 40 ] On November 20, 2008 Gill J. granted an Order establishing a process by which the seven beneficiaries and the estate lawyer could attend at the house where Ms. Yaworski lived at the time of her death, to deal with the distribution of some of her property among the beneficiaries. Apparently it was anticipated that there could be violence. Gill J. ’ s Order called for the attendance of a representative of the Edmonton Police Service. [ 41 ] I gather a police officer attended. The EPS issued a bill for $1353.45. Later the EPS issued a credit for $107.62.

The balance, $1245.83, was paid by Todd Yaworski as I understand the materials. [ 42 ] The Administrator denied Todd Yaworski ’ s claim for reimbursement of that expense. As far as I have been able to determine he gave no reason. Both Ted Yaworski and Sonya Demers agree that Todd should be reimbursed. No other beneficiary expressed a view.

[ 43 ] I agree that Todd Yaworski should be reimbursed for the cost of the EPS attendance pursuant to the Order of Gill J. I direct the Administrator to pay him $1245.83 as an expense of the estate. Todd Yaworski ’ s claim for the cost of headstone engraving [ 44 ] Todd Yaworski paid $220 toward the cost of engraving the headstone for Ms. Yaworski ’ s grave. There is no dispute from any quarter that he should be repaid. I direct the Administrator to do so. Other matters [ 45 ] The matters addressed above are the only ones on which the Administrator sought direction.

In their submissions the beneficiaries raised other matters. At the hearing of this application I directed that they make whatever further claims they wished to make to the Administrator by March 9, 2012. No further application for directions has been made as of yet. [ 46 ] Several of the beneficiaries raised concerns as to the fees charged by the Administrator. The Administrator filed a statement of his accounts from March 9, 2011 to September 28, 2011 at the time he brought this application.

I do not, however, understand him to have sought the Court ’ s approval of those accounts. [ 47 ] I note that the Order by which I appointed Mr. Turner as Administrator of the estate provided that one of his powers was to: (para. 2.) n. pay his costs, fees and expenses including GST as they occur from time to time from the estate trust account, according to the fee

schedule attached to this Order, subject to the review and approval of the Court upon the conversion of the remaining assets to cash and providing an accounting to the Court. [ 48 ] So far as I can tell, there was no fee

schedule attached to the Order. [ 49 ] Paragraph 6 of the Order contemplates a passing of accounts. [ 50 ] I anticipate that the Administrator will in due course apply for approval of his accounts. The beneficiaries will have notice and opportunity to raise any concerns they wish at the time of that application. Accordingly I have not attempted to assess the various concerns they have raised in response to this application. Heard on the 16 th day of February 2012. Dated at the City of Edmonton, Alberta this 14 th day of June 2012.

Brian R. Burrows J.C.Q.B.A. Appearances: Brian W. Summers for the Applicant Wayne Ledrew for Mark Yaworski Dan Peskett for Sonya Demers Todd Yaworski, Ted Yaworski, Patricia Pariseau, Holly Bennett, Bonnie Yaworski, Sonya Demers, Cecilia Yaworski either appeared or filed written materials or both without representation by Counsel.