Henderson (Re), 2021 ABQB 500

Court of Queen’s Bench of Alberta Citation: Henderson (Re), 2021 ABQB 500 Date: 20210630 Docket: ES12 36509 Registry: Wetaskiwin Court File Number ES12 36509 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Wetaskiwin Estate Name Allen S. Henderson Applicant (Plaintiff) Marilyn Henderson Respondent (Defendant) Travis Henderson and Lorraine Henderson _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Sterling M.

Sanderman _______________________________________________________ [ 1 ] Marilyn Henderson, the personal representative for the Estate of Allen Henderson, her son, seeks a finding of contempt in relation to Travis Henderson, the son of the deceased, Marilyn’s grandson, and Lorraine Henderson, the estranged wife of the deceased. The contempt application stems from the alleged interference of Travis and Lorraine in relation to Marilyn’s efforts to fulfill her duties as personal representative. [ 2 ] Allen died in the fall of 2016. Two holographic wills succeeded a will prepared by a lawyer in Camrose, Alberta.

One from February of 2016 left Allen’s estate to Travis. One from July 2016 left the estate to Marilyn and made her the personal representative. She applied for probate in relation to this will in 2017. [ 3 ] Travis filed a notice of objection in relation to Marilyn’s application challenging this will on the basis that it was not in his father’s handwriting and if it was, he lacked testamentary capacity when the will was written.

Implicit in the latter suggestion is that Marilyn exercised undue influence over her son. [ 4 ] From 2017 to 2021, the matter stalled as the lawyers retained by the parties were negotiating with one another and the Covid-19 pandemic intervened. The matter appeared in Chambers in Wetaskiwin, Alberta on March 16, 2021, as Allen farmed in that

judicial district. He was a successful farmer and left a considerable estate comprised of land, equipment, purebred cattle and harvested crops. [ 5 ] After Allen’s death the farming endeavours continued unabated. Travis and Lorraine put in crops for four years and ran the cattle operation. [ 6 ] The relationship between Marilyn and her grandson and daughter-in-law soured considerably during this period of time.

They were involved in contentious litigation and made hurtful comments about one another that called into question their respective characters and honesty. [ 7 ] On March 16, 2021, Marilyn asked to have Travis’ notice of objection removed and requested probate be granted to her. As the application developed, it became obvious that Travis was not the only person who had an interest in the litigation. Lorraine had filed a statement of claim to protect her matrimonial property rights. Additionally, Tanya, the daughter of Allen and Lorraine, might have some claim against the estate.

In order to ascertain who should have an audience before the Court, I adjourned the matter for two weeks to review the entire file. [ 8 ] In that time period, Travis and Lorraine discharged their previous counsel and retained Mr. Vipond. He sought to re-open the application for probate in order to put evidence from Lorraine and Tanya before the Court. On March 16, there was only affidavit evidence from Travis and Marilyn. [ 9 ] I allowed Mr. Vipond to make his application to re-open and to file affidavit evidence from Lorraine and Tanya. Travis submitted nothing further. Marilyn provided additional evidence.

There was some examination on these affidavits. [ 10 ] I considered all of this evidence on April 30, 2021. I refused to allow the matter to be re-opened and granted probate to Marilyn as she had established on a balance of probabilities on the evidence before the Court that the last holographic will was valid. Marilyn was authorized to start fulfilling her obligation as the personal representative of the estate.

The assets listed on the NC7 form submitted with the application for probate had been provided by Travis and Lorraine as they continued to operate the farm. [ 11 ] Close to four years has passed since the application for probate was requested. Since Allen’s death, Travis has been acting as if the estate property was his. Further delay could not be considered. It was imperative that Marilyn be allowed access to the estate lands to ascertain the condition of the equipment there and to determine the extent of the cattle herd and the grain that might be stored.

A mechanism had to be devised that would allow her to prepare a proper inventory of the estate assets so she could perform her legal obligations as the personal representative. [ 12 ] A further hearing was held on May 19, 2021. At this hearing, Marilyn asked for directions from the Court in order to make her task easier.

An order was granted to facilitate her obligations as personal representative. [ 13 ] It is the conduct of the Respondents since that order was granted that Marilyn relies upon in her application to have them held in contempt. [ 14 ] Marilyn contends that Travis and Lorraine have breached paragraphs 3, 6, 9 and 12 of the May 19, 2021 Order. She claims that they have prevented her from having unfettered access to the estate properties.

Although she points to their interference with her ability to access buildings, vehicles and equipment that belong to the estate, thereby frustrating her ability to prepare a proper inventory of estate properties, she is more concerned about her inability to properly ascertain how many estate cattle exist and where they are as none remain on the three quarter sections that constitute the real property possessed by Allen at his death. She contends that the Respondents have moved these cattle to a location unknown to her. [ 15 ] Marilyn is a mature women in her 80’s. She has been encumbered with an onerous task.

In order to properly inventory the estate, she obtained the assistance of her daughter Wendy Bish, Allen’s sister. After Marilyn obtained the May 19, 2021 Order, she and Wendy attended the estate farming operation to begin the task of preparing an inventory. Wendy Bish has filed an affidavit with accompanying pictures outlining the frustrations experienced by her and Marilyn as they began their task. This affidavit was sworn on June 3, 2021. Ms. Bish was cross-examined on this affidavit on June 15, 2021. This is the evidence relied upon by Marilyn to support her application.

Wendy Bish accompanied her mother because her level of mobility made it easier for her to get into restricted areas to examine equipment and her mother felt somewhat intimidated travelling to the farm where Travis and Lorraine lived having regard to the growing animosity between the parties. [ 16 ] On June 11, 2021, the contempt application was in court. Travis and Lorraine had not had an opportunity to file an affidavit in response to Wendy Bish’s allegations. Mr. Vipond wanted an opportunity to cross-examine Wendy Bish. Consequently, the matter was adjourned to June 22, 2021, to permit this.

Travis swore an affidavit; Lorraine did not. [ 17 ] On June 11, 2021, I told the Respondents through their counsel that substantial compliance with the May 19, 2021 Order would go a long way in determining whether there was a case for contempt that could be made out. [ 18 ] Substantial compliance is synonymous with cooperation in allowing the personal representative and her agents to properly inventory and deal with the estate assets. The task of the personal representative is not a simple one in this matter as Allen ran a substantial, sophisticated farming operation.

He had land under cultivation and raised purebred cattle. The agricultural aspect of this operation was dependent on the use of his land and machinery. In addition to this, he and Lorraine were shareholders in a manufacturing operation started by Allen’s parents. The obligation Marilyn faces is considerable. [ 19 ] Of immediate concern to her is the location of the purebred cattle that form a significant portion of the estate. A calf follows its mother. Upon birth it becomes the property of the individual who owned the cow. Since Allen’s death there have been five calving seasons.

As of June 3, 2021, there were no cattle on the estate quarter sections. In visits to examine the equipment in late May, cattle were present. They appeared to have been moved before June 3, 2021, by Travis.

[ 20 ] It is extremely disconcerting to Marilyn that this has happened. She knows that certain of the cattle have been sold at various cattle sales within the province, but does not have any accurate accounting in relation to the increase or decrease in Allen’s herd. At this time, this is her major concern. [ 21 ] Travis’ affidavit sworn June 21, 2021, a day before the appearance on June 22, does not allay any of her concerns. He outlines how Allen’s cattle have been dealt with in one paragraph of six lines without providing supporting documentation.

He offers the following conclusory statement: The Estate presently owns no cattle and neither Lorraine, Tanya or I have any cattle with the ear tattoo AHXX. [ 22 ] This bold assertion brings little comfort to the personal representative. It fails to deal with the allegation that the cattle were present on the estate quarter

section in late May but removed by June 3 rd . He has completely ignored the allegation of assets being hidden. The removal of these cattle has hampered Marilyn’s ability to fulfill her legal obligations. [ 23 ] Travis’ affidavit of June 21, 2021, was not sent to Ms. Gallagher, counsel for Marilyn, until late that day. She had little opportunity to confer with her client before the appearance scheduled for the following day and no opportunity to cross examine Travis. She was prepared to forego that opportunity as her client felt there was a need not to delay the matter further.

As the affidavit did not satisfactorily provide a full accounting of the status of the cattle herd over the past five years, she was prepared to proceed with the application on June 22, 2021, relying on evidence already before the Court. [ 24 ] Marilyn and Wendy Bish went to the estate quarter sections on the Victoria Day weekend of 2021, on May 29 th , on May 30 th and on June 3 rd . In her affidavit, Ms.

Bish sets out their inability to access the property on the Victoria Day long weekend, their difficulty in gaining access to buildings on a later date, the discovery of damaged equipment, their observation of the removal of estate equipment from the main yard, their belief that an air seeder belonging to the estate had been used although no crop has been planted for 2021 on the estate quarter sections and their belief that some Canola was missing. [ 25 ] In Travis’ affidavit there is enough evidence to put these concerns to rest and to remove them from consideration on the contempt application. [ 26 ] Travis and Lorraine were not on the property over the Victoria Day weekend.

The explanation for the damaged equipment is plausible, Canola was sold in 2017 and an amount is recorded in Travis’ and Lorraine’s accounting for the past four years. The lack of cooperation in providing access to buildings does not support a finding of contempt. The observations in relation to the air seeder are adequately explained. [ 27 ] A portion of Ms. Bish’s affidavit deal with the feeling of intimidation she and her mother experienced as a result of Travis’ actions during the latter part of the month of May.

Having regard to the deteriorating relationship between these relatives, it is understandable they felt this way. I do not accept Travis’ white-washed version of the inordinate personal interest his neighbours took in his dispute with his grandmother, but subjective feelings of intimidation without an objective evidentiary basis could not support a finding of contempt. [ 28 ] That leaves us with the cattle and Marilyn’s inability to examine and assess those cattle that were on the estate quarter sections in May, but not June of this year.

The vague and incomplete dealing with this subject in his affidavit by Travis falls far short of substantial compliance with the May 19 th Order. [ 29 ] The disappearance of cattle from the estate quarter sections appears to have been done in order to frustrate Marilyn in her ability to carry out her obligations as the personal representative of Allen’s estate.

Based on the affidavit evidence before the Court, the only conclusion that can be reached is that Travis and Lorraine, who controlled the estate property, removed estate cattle from it to a secret location. [ 30 ] It is obvious that Lorraine has an interest in the estate as Allen’s wife. Arguments can be made by Travis and Lorraine in relation to their ownership of certain pieces of equipment and cattle. Those issues and possibly the validity of Allen’s holographic will of July 16, 2016, remain for a future day. [ 31 ] The issue before me is very narrow.

Have Travis and Lorraine interfered with Marilyn’s ability to fully ascertain the extent of her son’s estate so that she can carry out her duties as his personal representative? The answer is yes. Consequently, the case for contempt pursuant to Rule 10.52(3) in relation to the May 19 th Order is made out. Travis and Lorraine have not been acting in good faith in relation to allowing Marilyn to carry out her task and have wilfully breached this Order. [ 32 ] They have been on the property utilizing estate assets since Allen’s death.

They are in the best position to provide information to Marilyn that would make her task easier. Instead of showing a cooperative spirit, they have embraced an antagonistic and frustrating one. [ 33 ] The penalty they will be required to pay is a monetary one. They will have until July 21, 2021, to rectify their failure to follow the May 19 th Order by revealing where the cattle are, allowing all of them to be examined and providing a full accurate accounting in relation to the herd in existence at Allen’s death and its increase and decrease since then.

Failure to do so will result in the imposition of a significant monetary penalty [ 34 ] Costs may be addressed by written argument within 30 days of this decision. Heard on March 16, April 30, May 19, June 11 and 22, 2021 Dated at the City of Wetaskiwin, Alberta this 30 th day of June, 2021.

Sterling M. Sanderman J.C.Q.B.A. Appearances: Chaylene L Gallagher, Bryan & Co. for the Applicant Grant R Vipond, Vipond Law Firm for the Respondents