Johnson Estate (Re), 2016 ABQB 616

Court of Queen’s Bench of Alberta Citation: Johnson Estate (Re), 2016 ABQB 616 Date: 20161103 Docket: ES03 144965 Registry: Edmonton Court File Number ES03 144965 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Troy Johnson Applicant (Plaintiff) Rebecka Curtis Respondent (Defendant) Vance Johnson and Justin Johnson _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A.

Yungwirth _______________________________________________________ [ 1 ] This case deals with competing applications under the Estate Administration Act , SA 2014, c E-12.5 to administer the estate of Troy Johnson; one by his father, Vance Johnson, who ranks first in priority; and the other by Rebecka Curtis, the mother of Troy Johnson’s son, who has applied for advice and directions on the issue. [ 2 ] Troy Johnson died intestate at age 27 in a motor vehicle collision on March 4, 2015. At the time of his death, he had no spouse and no adult interdependent partner.

He did have one child, Tyson Curtis, born January 16, 2011. The applicant, Ms. Curtis, is Tyson ’s mother. She claims to have been in a romantic relationship with Troy Johnson at the time of his death. [ 3 ] Troy Johnson was also survived by his father, Vance Johnson, and his brother, Justin Johnson. Troy’s mother, Carol Johnson, died two months before Troy’s death. [ 4 ] Ms. Curtis filed this application on November 17, 2015. On December 3, 2015, she began an action under the Fatal Accidents Act , RSA 2000, c F-8, both in her personal capacity and as litigation representative for Tyson.

On February 4, 2016, she filed a Caveat, halting any proceedings with respect to administering Mr. Johnson’s estate.

[ 5 ] Vance Johnson filed an application for a grant of administration on February 10, 2016, attaching a Renunciation of Administration by the Public Trustee for the Province of Alberta. On March 7, 2016, he also commenced proceedings under the Fatal Accidents Act . Justin Johnson, Mr. Johnson’s brother, renounced his right to administer and that Renunciation was attached to Vance Johnson’s affidavit.

Issue for Determination [ 6 ] Under s.13 of the Estate Administration Act , Vance Johnson has priority to apply for a grant of administration for his son’s estate, but Rebecka Curtis submits she is a more suitable person to administer the estate. [ 7 ] The issue, therefore, is whether Ms. Curtis should be the administrator of the estate of Troy Johnson, notwithstanding the legislated priorities set out in the Estate Administration Act . The Applicant’s position [ 8 ] Ms.

Curtis maintains that she is more appropriate to serve as the administrator because Vance Johnson was estranged from Troy Johnson at the time of his death and has no relationship with Tyson . She argues that equity balances the scales in her favor, as she has already commenced an action under the Fatal Accidents Act as Tyson’s litigation representative. She says that the estate has no assets and so the only reason that a grant of administration is required is to direct that action – which is for Tyson’s benefit. [ 9 ] Ms.

Curtis also submits that the language of s. 13(1) of the Estate Administration Act : “unless a Court orders otherwise” means that the Legislature contemplated special circumstances when the statutory priorities would not apply. Further, she submits that the rationale underlying s. 13(5), dealing with when a minor is named as an executor under a will, should also apply to an intestacy. Under s. 13(5) the Court has broad discretion to grant authority to administer the estate to an appropriate person. [ 10 ] Finally, Ms.

Curtis argues that since the Public Trustee renounced its priority to apply for administration on Tyson ’s behalf, the Court should determine who would be the most appropriate person to represent the minor’s interests in the estate and the Fatal Accidents Act claim. [ 11 ] Ms. Curtis swore an affidavit in support of her application describing her relationship with Troy Johnson in some detail. Some of what she says is disputed by Vance Johnson. This conflict in the evidence would be significant if Ms. Curtis claimed to be the spouse or adult interdependent partner of Troy Johnson at the time of his death.

She does not. For the reasons that follow, this evidence is not particularly relevant and the conflicts between her evidence and the evidence of Vance Johnson need not be resolved. The Respondent’s Position [ 12 ] Vance Johnson denies that he was estranged from his son at the time of his death, and provides evidence of his contact with Troy up to the day before Troy died. He argues that s. 13(1) of the Estate Administration Act sets out the priorities for an application for a grant of administration and there is no reason in this case to depart from the priorities set out in the Act.

He further points out that the only people entitled to receive under the Fatal Accidents Act are Vance Johnson and Tyson Curtis, and the Public Trustee must review and approve any settlement on behalf of Tyson in this regard. [ 13 ] Further, Vance Johnson argues that the Ms. Curtis, as a creditor of the estate for child support arrears, is in a conflict and should not, therefore be appointed as an administrator. Analysis The evidence [ 14 ] Each party filed an affidavit and were questioned on them; the transcripts of that questioning were filed. Ms.

Curtis’ original Affidavit in support of her application was brief and appears to have been motivated by the lack of any action on the part of Vance Johnson or Justin Johnson to apply for a grant of administration. [ 15 ] After being served with notice of this application, Vance Johnson filed an Affidavit in which he deposed that following Troy’s death, he arranged for the funeral, applied for the CPP benefit, dealt with creditors, and cleaned out his son’s apartment.

He deposed that he is aware that Tyson is the sole beneficiary of Troy’s estate and that he is willing to administer the estate including retaining and instructing counsel for a claim under the Fatal Accident’s Act . Justin Johnson, Troy Johnson’s brother, renounced his right to administer the estate, and that Renunciation was attached to Vance Johnson’s affidavit. [ 16 ] Ms. Curtis’ second affidavit, sworn February 9, 2016, goes into great detail about her relationship with the deceased. She deposes that Vance Johnson had limited involvement in Tyson ’s life and provides details of their contact.

She deposes that Vance Johnson “has also shown very little interest in Tyson and in his well-being”. In support of that allegation, she points out that he made no effort to address the estate’s child support obligation, and identifies some fundraising efforts for Tyson, with respect to which she has not been provided with information or funds. Ms.

Curtis deposes that she is familiar with the deceased’s assets, liabilities, education, work history and health history, and that she is intimately familiar with Tyson’s circumstances and future needs and interests. [ 17 ] Vance Johnson’s responding affidavit was sworn September 23, 2016. He responds both to Ms. Curtis’ February 9, 2016

affidavit and to the evidence from the questioning on her affidavits. [ 18 ] Ms. Curtis maintains that this affidavit was filed too late for her to respond to, and that it contains inadmissible hearsay (paragraphs 3, 7, 9, 13, and 15) and opinion evidence (paragraphs 1, 3, 7, 9, 13, 15, and 16). She also submits that paragraphs 7, 9, 13, and 15 offend the Rule in Brown v Dunn , (1893) 6 R 67 (UKHL) Finally, she submits that an adverse inference should be drawn against Mr. Johnson with respect to the evidence in paragraph 3, which should have been obtained from Jasmine Maxwell. [ 19 ] Ms.

Curtis submits that the court has several options with respect to this evidence, including striking the offending paragraphs, redacting certain portions of the affidavit, giving little or no weight to the identified paragraphs, or through an award of costs. [ 20 ] To the extent that Mr. Johnson opined that Ms. Curtis was not being truthful in her evidence, the Court will disregard that opinion evidence in its entirety. [ 21 ] Except for paragraphs 13 and 15, the balance of the concerns raised, are in relation to evidence about the relationship between Ms. Curtis and the deceased. As Ms.

Curtis is neither a spouse nor an adult interdependent partner to the deceased, and as we are not dealing with competing applicants with equal priority to apply for a grant, the nature of her relationship with the deceased has little relevance when looking at the issue of priorities. [ 22 ] As for paragraphs 13 and 15, because Ms. Curtis has not had a chance to respond to these paragraphs, because they contain hearsay and because they have very little impact on a consideration of the priorities to apply for a grant, the Court gives that evidence no weight. Statutory analysis [ 23 ] The applicable portions of

Section 13 of the Estate Administration Act , SA 2014, c E-12.5 provide: 13(1) On application for a grant, unless the Court orders o therwise, the priority to be given to an applicant for a grant is, (

a) if no will exists, as follows, in descending order of priority: (

i) to the surviving spouse or surviving adult interdependent partner; (ii) to a child of the deceased person; (iii) to a grandchild of the deceased person; (iv) to a descendant of the deceased person other than a child or grandchild; (

v) to a parent of the deceased person; (vi) to a brother or sister of the deceased; (vii) to a child of the deceased person’s brother or sister if the child is a beneficiary under the intestacy; (viii) to the next of kin of the deceased person determined in accordance with sections 67 and 68 of the Wills and Succession Act who are beneficiaries under the intestacy and who are not otherwise referred to in this clause; (ix) to a person who has an interest in the estate because of a relationship with the deceased person; (

x) to a claimant; (xi) to the Crown in right of Alberta. (Emphasis added) [ 24 ] Subsections (2) and (3) permit the Court to exercise discretion when appointing an administrator when applicants are of equal priority. That is not the case here. [ 25 ] Under these priorities Tyson would have first priority, followed by Vance Johnson, and then Justin Johnson. Rebecca Curtis is last in the priority list, as she was not a spouse, adult interdependent partner or relative of the deceased.

She has the status of a claimant because she claims child support arrears against the estate. [ 26 ] Under s. 14 of the Public Trustee Act , SA 2004, c P-44.1, the Public Trustee has the same priority as Tyson to a grant of administration. The Public Trustee renounced its priority right to apply on behalf of Tyson, leaving Vance Johnson as the person with first priority to apply for a grant of administration. [ 27 ] The philosophy behind the legislated priorities, is to give preference or priority among potential administrators based on their relative interest in the deceased’s estate.

Accordingly, the highest priority to apply goes to the person or persons entitled to the greatest share of the estate on intestacy as reflected in the list. Underlying this ranking is the rationale that a person who stands to benefit from the estate has some motivation to take on its administration: Estate Administration Report for Discussion , (Edmonton: Alberta Law Reform Institute 22 September 2011 at page 8). [ 28 ] Further, this priority scheme is consistent with

Part 3 of the Wills and Succession Act , SA 2010, c W-12.2 dealing with the distribution of intestate estates.

[ 29 ] Having a predictable scheme for priority among applicants for a grant is important because it gives family members certainty, and thereby reduces the potential for conflict when someone dies without a will. [ 30 ] In addition to the discretion given the Court in ss. 13(2) and (3) of the Act where there are competing equal priority applicants, the Act also contemplates Court intervention in the opening sentence of s. 13(1) ” “unless the Court orders otherwise”. [ 31 ] I reject Ms. Curtis’ argument that subsection 13(5) can be used to support her claim.

Tyson was not named as executor of his father’s estate, and so the requirement for the Court to grant the authority to administer the estate, to another person, does not arise. [ 32 ] Nor do I consider this situation to be analogous. Section 13(5) deals with the situation where the will itself, not the Legislature, has named a minor as the executor. The statutory priority list provides that a child of the deceased is second in priority to a spouse or adult interdependent partner, but the Public Trustee assumes that role for a minor and in this case has renounced that priority right.

When should the Court exercise its discretion to “order otherwise”? [ 33 ] The predictable scheme that the legislation contemplates would be undermined if courts intervened without good reason. Therefore, the Court should only intervene to change the legislated priorities in unusual circumstances. In this regard, it is not enough for someone of a lower rank to assert that they are more appropriate than a person with a higher priority.

They must demonstrate that the person with priority is not suitable to act as administrator. [ 34 ] Each case will be driven by its facts. [ 35 ] The types of circumstances that may demonstrate that an applicant with priority is not suitable, may include things such as: 1. the applicant killed the deceased ( Jacobson v. Huber, [1982] BCJ 52 , 11 ETR 179 (SC) ; 2. the applicant is in conflict with the estate in some way ( Re Muttart Estate, [1971] WWR 348 (AB SCTD); 3. the applicant lacks capacity to act as administrator.

This list is by no means exhaustive. [ 36 ] In this case, the applicants do not have equal priority. Rather, Ms. Curtis, who has lower priority than Mr. Johnson to apply for a grant, believes that she is the preferred person to administer the estate due to her relationship with the deceased and her relationship with the sole beneficiary of the estate. [ 37 ] The decision in Muttart , does not assist Ms. Curtis because it dealt with applicants with equal priority.

The seven principles set out in that case are more appropriate for consideration in circumstances where there are competing applicants with equal priority, and in any event, at least one of the considerations in that list (number 3) are antiquated and no longer good law (see Broder Estate (Re), 2002 ABQB 137 at para 30 ). [ 38 ] Ms. Curtis’ evidence falls short of demonstrating that Vance Johnson is unsuitable to act as administrator of Troy Johnson’s estate. Mr. Johnson’s limited involvement with Tyson is not, in my view, sufficient to establish that he is not suitable to act as administrator.

Nor are the other things raised by Ms. Curtis in her February 9, 2016 affidavit. [ 39 ] There is no evidence that Vance Johnson, once he receives a grant of administration, will not deal with the matters remaining to be dealt with for his son’s estate. He has already been doing some of the estate administration on an informal basis. [ 40 ] There is also no evidence that Mr. Johnson will not diligently pursue the claims that he, Tyson , and the estate have under the Fatal Accidents Act . [ 41 ] While it is true that Mr. Johnson will have to rely on Ms.

Curtis to provide the information required to advance Tyson ’s claim, there is no evidence that she will obstruct the process. This would be contrary to her expressed intention to act in a manner that is in Tyson’s best interests. There is no evidence that Mr. Johnson will not act in Tyson’s best interests in his dealings with Ms. Curtis as he advances Tyson’s claims. [ 42 ] I note that the Public Trustee must be informed and give approval on behalf of Tyson , to any settlement of the Fatal Accidents Act claims made. The Public Trustee indicated through Counsel that Ms.

Curtis would also be informed of any settlement proposal presented to the Public Trustee. [ 43 ] In

summary, this is not about whether Ms. Curtis is more suitable than Mr. Johnson to be administrator of the estate of Troy Johnson. It is about whether there is evidence to establish that Vance Johnson would not be a suitable person to be the administrator. I find that there is not.

[ 44 ] Therefore, Vance Johnson is the person with priority to apply for a grant of administration of his son’s estate and his application shall proceed. Other matters [ 45 ] The Fatal Accidents Act claim commenced by Ms. Curtis shall be discontinued. Vance Johnson can then proceed with the action that he has commenced. [ 46 ] The parties shall work cooperatively to provide the required information to enable Mr. Johnson to pursue Tyson ’s claims under the Fatal Accidents Act . [ 47 ] Given my decision, it is not necessary for me to address Vance Johnson’s submission that Ms.

Curtis’ status as a creditor of the estate creates a conflict which prevents her from acting as administrator. Conclusion [ 48 ] I dismiss Ms. Curtis’ application. Failing agreement between the parties on the issue of costs, they may be spoken to within 60 days. Heard on the 18 th day of October, 2016. Dated at the City of Edmonton, Alberta this 3 rd day of November, 2016. D.A. Yungwirth J.C.Q.B.A. Appearances: Jeffrey B. Champion, Q.C. Bishop & McKenzie LLP for the Applicant Elizabeth M. MacInnis, Q.C. Weir Brown LLP for the Respondents Sharon Buckley-Tkach Office of the Public Trustee