Roberts v Roberts, 2021 ABQB 945

Court of Queen’s Bench of Alberta Citation: Roberts v Roberts, 2021 ABQB 945 Date: 20211126 Docket: ES06-18955 Registry: Lethbridge Court File Number ES06-18955 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Lethbridge Estate Name Beatrice May Roberts; also known as Beatrice Roberts; also known as Bea Roberts Applicants Constance Joanne Roberts Peggy Anne Campbell Respondents Douglas Roberts Catherine Sommerfeld Dianne Jones _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.C.

Kubik _______________________________________________________ Introduction [ 1 ] Beatrice Roberts (“Ms. Roberts”) died testate on January 27, 2018, leaving her Estate in equal shares to her four surviving children and her sole grandchild. [ 2 ] During her lifetime she opened a Tax-Free Savings Account (“TFSA”). She designated her daughter, Peggy Campbell, as the sole beneficiary of the TFSA. [ 3 ] The existence of the TFSA and its beneficiary designation was known to all of her children prior to her death. Only one of them, Constance Roberts, ever discussed it with her.

Subsequent to her death there is a dispute as to whether the TFSA forms part of her Estate. [ 4 ] While the parties argued issues regarding the Limitations Act , RSA 2000, c L-12 [“ Limitations Act ”], and the doctrine of estoppel by representation, this case turns on whether the presumption of resulting trust applies to beneficiary designated instruments.

[5] An additional issue for my determination relates to the expense reimbursement claims of the personal representatives,totalling $22,318.57. Evidence [6] At the time of her death in January 2018, Ms. Roberts was 96 years old. During her working life, she was employed with theCanada Revenue Agency and as a bookkeeper for multiple schools, operating within a school board in Richmond, British Columbia. Shewas knowledgeable about banking and accounting matters.

She continued to prepare and file her own tax returns until 2011, executed herWill and Enduring Power of Attorney in March 2012, and reconciled her own bank accounts until 2013. While she required assistancefrom her children in her later years with filing, bank account reconciliation, and transportation to and from appointments, she remainedfully capable of managing and planning her financial affairs until her death. [7] The Will she executed on March 21, 2012, named her daughters Peggy and Constance as her personal representatives.

Theenduring Power of Attorney, executed that same day, named Peggy as her attorney and Constance as her alternate attorney. [8] On April 24, 2014, Ms. Roberts attended with Andrea Fairgreave of First Choice Savings and Credit Union (“First Choice”)for the purpose of opening a Tax-Free Savings Account. [9] At the time of their meeting, Ms. Fairgreave had been employed by First Choice for 24 years, and while she did notspecifically recall the meeting with Ms.

Roberts, she testified that she had a standard practice she followed when opening such accounts.That practice included ensuring that the client was of sound mind, and understood both the nature of the account they were opening, andthe effect of the beneficiary designation, including its consequences, whether completed or left blank. [10] Ms. Roberts opened the account by signing the necessary paperwork with Ms. Fairgreave and deposited $31,000.00 atopening. She also signed the beneficiary designation naming Peggy as her beneficiary. Peggy’s name and other information washandwritten onto the document by Ms.

Fairgreave. [11] Thereafter, Ms. Roberts made regular, annual contributions to the TFSA. At her death the fund was valued at $53,195.39. [12] The existence of the TFSA and beneficiary designation it contained was known to all Ms. Roberts’ children prior to theirdeath. None but Constance spoke to her about it before her passing. This conversation occurred in December 2014. Constance’s evidenceis that upon discovering the existence of the TFSA and beneficiary designation, she immediately queried her mother about thedesignation and its effect. Her mother’s reply was, “I know what I am doing.

I’m not stupid.” [13] Some 3 years later in September 2017, while visiting her mother, Catherine Sommerfeld found a bank statement relating to theTFSA. She did not discuss it with her mother; rather, she took a photocopy of the document and returned to British Columbia with it. InOctober 2017, she contacted her brother Douglas Roberts, to ask if he was aware that Ms. Roberts had a TFSA. He was not. He testifiedthat he telephoned Peggy to inquire about the TFSA and she responded that upon Ms. Roberts’ death it would be divided 5-ways inaccordance with her Will.

Following his mother’s death, and upon receipt of the final accounting on July 5, 2019, he realized that theTFSA was not included in the Estate. According to Douglas, he had a second conversation with Peggy on July 10, 2019. He testified thatduring that conversation Peggy told him that their mother had cashed out the TFSA 4 or 5 years earlier. Peggy denies that both of theseconversations occurred. [14] Correspondence was exchanged between Douglas and Peggy in the late summer of 2019, and a meeting was arranged betweenPeggy, Constance, Catherine, and Douglas. That meeting was to take place on September 7, 2019.

Douglas claims to have canceled themeeting with notice, whereas Peggy testified that Douglas and Catherine did not attend for the meeting. In any event, the meeting did notoccur and this litigation ensued. Issues Issue One: The Limitations Act [15] The Personal Representatives argue that the claims advanced regarding the TFSA are statute-barred. [16]

Section 3 of the Limitations Act provides that a claimant must commence an action within 2 years of the date they knew, orought to have known, they suffered injury. [17] Discoverability for the purposes of triggering the limitation period requires that the claimant know or have been reasonablyable to discover, that an injury occurred, was attributable to the defendant, and warranted bringing a proceeding. [18] The principle of discoverability does not require perfect knowledge on the part of the claimant: DeShazo v Nations EnergyCompany Ltd, 2005 ABCA 241, but it is a long-standing principle that discoverability requires the material facts on which the cause ofaction is based to be known, or reasonably known, by a claimant exercising reasonable diligence: Central Trust Co v Rafuse, (SCC), [1986] 2 SCR 147. [19] This issue turns on when Douglas, Catherine, and Dianne became aware that the TFSA did not form part of the Estate. [20] While Peggy and Constance argue that Douglas and Catherine were aware of the beneficiary designation in September andOctober of 2017, and therefore their limitation period began to run then, this knowledge is insufficient to trigger the limitation period.First, Ms.

Roberts was still alive and had full ownership of and control over the TFSA. Any interest which Peggy may have had on her

mother’s death had not yet vested. There was no injury attributable to any party giving rise to a claim at that date. After Ms. Roberts death, no grant of probate was applied for and no formal accounting was provided until July 5, 2019. This is the first date that Douglas, Catherine, and Dianne would have been aware that the TFSA did not form part of the Estate. They filed their Notice of Objection on August 31, 2020, within the 2-year limitation period prescribed by statute. Accordingly, their claim is not statute-barred.

Issue Two: Estoppel by Representation [ 21 ] Douglas, Catherine, and Diane argue that in October 2017 Peggy represented that the TFSA would be divided 5-ways in accordance with Ms. Roberts Will, and that she is now estopped from resiling from that representation. [ 22 ] Estoppel by representation occurs when a party makes a representation, intending to induce another person to alter their legal position, to their detriment. [ 23 ] The Respondents bear the burden of proving that Peggy represented to them that the TFSA would be divided in accordance with Ms.

Roberts Will, that Peggy intended them to rely on this representation and that they acted, or changed their legal position, to their detriment, as a result: B & R Development Corporation Ltd v Trail South Developments Inc , 2012 ABCA 351 . [ 24 ] This issue turns largely on a conversation which Douglas alleges he had with Peggy in October 2017, after Catherine informed him about the beneficiary designation on the TFSA. [ 25 ] As previously noted, Douglas alleges that he telephoned Peggy in October 2017, in order to discuss the existence of the TFSA.

He testified that when he called Peggy, he was not so much concerned about the beneficiary designation as he was about the existence of the account. Yet according to his testimony, the conversation with Peggy was limited to the issue of how that account was to be divided upon Ms. Robert’s passing. This suggests he was, in fact, more concerned about the beneficiary designation than whether his mother owned a TFSA. [ 26 ] Further, he testified that when he called Peggy and inquired about the account, she immediately stated that it would be divided 5-ways in accordance with the Will.

Both Constance and Peggy have provided evidence that they did not become aware of the contents of their mother’s Will until they attended upon legal counsel following her death, and learned that they were the personal representatives of the Estate.

This is consistent with Peggy’s testimony that had Douglas made inquiries about the distribution of their mother’s assets she would have directed him to speak to their mother about it. [ 27 ] Peggy was steadfast in her testimony that she did not intermeddle in her mother’s affairs, and this is consistent with the evidence regarding her mother’s financial independence throughout her lifetime. [ 28 ] There is no evidence before the court to suggest that Ms. Robert’s lacked capacity to manage her financial affairs, or that she was subjected to any undue influence by Peggy.

The TFSA was there for all to see and indeed, Douglas could have discussed it with his mother as Constance did. [ 29 ] Douglas’ testimony between questioning on affidavit and trial was inconsistent. At questioning he testified that he had not spoken by telephone to Peggy between his mother’s death and September of 2019.This is inconsistent with his trial testimony that he telephoned Peggy in July 2019 and she told him that the TFSA had been liquidated several years prior to their mother’s death.

At trial he attempted to explain this inconsistency by suggesting that he thought counsel meant personal calls as opposed to calls respecting the Estate. The questions posed at Questioning were clearly in reference to whether he had spoken to Peggy by telephone respecting the Estate between January 2018 and September 2019 and his answer was clearly “no”. [ 30 ] Douglas has not provided any evidence to corroborate the conversation of October 2017, as would be required pursuant to

section 11 of the Alberta Evidence Act , RSA 2000, c A-18 . While he did write a letter in August 2019 setting out those two conversations, Peggy provided an immediate reply, in writing, refuting that the conversations had ever occurred. The letter in and of itself is not corroborative of either the fact of the conversations or their content. It is not independent evidence, and it does not support an inference which lends support to the truth of Douglas’ account, as required by

section 11 and defined in Stochinsky v Chetner Estate , 2003 ABCA 226 . At best the letters between the parties are neutral evidence. [ 31 ] Finally, with respect to the meeting between the parties which was supposed to occur on September 7, 2019, Douglas testified that he cancelled the meeting with notice to his sisters because they refused to provide any financial documents predating their mother’s death. This is contrary to Peggy and Constance’s evidence that he and Catherine failed to show up for the meeting.

It makes no sense that his sisters would have attended for the meeting at the date and time scheduled, in a pre-arranged location, had Douglas cancelled the meeting. [ 32 ] Douglas’ account is not credible for the reasons outlined and I accept Peggy’s evidence, which was unshaken on cross- examination, that the telephone calls did not occur. On that basis, there is no estoppel by representation, no representation having been made. [ 33 ] Even so, Peggy did not, prior to her mother’s death, have any legal authority with respect to the TFSA to create an estoppel by representation. During her lifetime, Ms.

Roberts held complete ownership of and control over the TFSA with the right to designate beneficiaries and revoke designations. While Peggy was the named attorney under her mother’s Enduring Power of Attorney, Ms. Roberts did not lose capacity during her lifetime, and as a result Peggy was not acting in a representative capacity at any time prior to her mother’s death. Issue Three: Presumption of Resulting Trust [ 34 ] The presumption of resulting trust is a common law creation and an equitable principle. Effectively, it operates to require a

gratuitous transferee to rebut the presumption that they hold the transferred property in trust, for the benefit of the transferor, as opposedto have taken a beneficial interest in the property transferred. [35] This principle has been applied broadly to life insurance policies, joint bank accounts, land holdings, and trust instruments, toname a few. [36] In 2007 the Supreme Court of Canada rendered its decision in Pecore v Pecore, 2007 SCC 17 [Pecore], holding that in thecase of gratuitous inter vivos transfers of property between parents and adult children, there is a presumption of resulting trust requiringthe surviving joint owner to prove that the transferor intended to gift them an interest in the asset. [37] Pecore does not speak to transfers which are not inter vivos in nature.

Various courts have considered this issue in the contextof “beneficiary designated instruments” with varying results. [38] In 1994 the Manitoba Court of Appeal applied the presumption of resulting trust to an RRSP which named an adult son as thedesignated beneficiary: Dreger (Litigation Guardian of) v Dreger, (MB CA), [1994] 10 WWR 293. [39] In Nelson v Little Estate, 2005 SKCA 120, the Saskatchewan Court of Appeal addressed the issue in relation to a beneficiarydesignated Registered Retirement Investment Fund (“RRIF”), holding that the presumption of resulting trust did not apply. [40] In Alberta, Graesser J explored the issue in relation to a RRIF account.

In his decision, he discussed

section 71 of the Willsand Succession Act, RSA 2010, c W-12.2 [Wills and Succession Act], noting that there was no sound policy reason for treatingbeneficiary designations, made pursuant to

section 71, differently than beneficiary designations made in a Will. He did not, however,decide the issue of whether the effect of

section 71 is to render beneficiary designated instruments testamentary in nature. Rather, he wassatisfied that he could decide the issue without resort to the presumptions, finding on an assessment of the evidence that the gift fromfather to son was intended: Morrison Estate (Re), 2015 ABQB 769 [Morrison]. [41] Since Morrison, academic consideration has been given to the presumption of resulting trust in the context of beneficiarydesignations.

According to these writings, legitimate policy arguments, including transactional certainty and respect for donative intent,support treating beneficiary designations as testamentary in nature. [42] It was argued by the personal representatives that a beneficiary designation made in accordance with

section 71 of the Willsand Succession Act is testamentary in nature. As a result, it is necessary to interpret this provision. [43] The modern rule of statutory

interpretation requires courts “to take a unified, textual, contextual, and purposive approach tothis task... a Court must consider not only the textual wording of the statutory provision in dispute, but also the purpose of that provisionand all relevant context. That includes the legislative scheme of which the provision forms a part.” (Ruth Sullivan, 6th Edition(Markham: LexisNexis Canada, 2014) [Sullivan] at 7-8; Alberta v ENMAX Energy Corporation, 2018 ABCA 147.) [44] The Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, stated: ...statutory

interpretation cannot be founded on the wording of the legislation alone. The words of

an Act are to be read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament. [45] Further, The

Interpretation Act, RSA 2000, c I-8 [Interpretation Act], provides that an enactment shall be construed as beingremedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects:section 10. [46] The general object of the Wills and Succession Act is to establish the formal requirements for Wills, provide for the orderlydistribution of estates in circumstances of intestacy, and to protect the rights and interests of dependent family members in circumstanceswhere adequate provision has not been made for their support. The Wills and Succession Act provides, in

Part 4, for “Designation ofBeneficiaries Under Plans”.

Part 4 can be traced back

section 47 of the Trustee Act (now repealed). Its substantive wording is nearidentical, subject to the inclusion of TFSAs and modernizing the provisions to allow rollovers of accounts and electronic signatures. [47]

Section 71 specifically provides that participants in certain defined plans (pension, annuity, RRSP, RRIF, TFSA, or asprescribed by legislation) may designate a person to receive a benefit payable under the plan, upon the participant’s death: s. 71(1)(a)(i)-(v). Beneficiary designations may be made by instrument, signed by the participant (or a person on their behalf, at their direction and intheir presence), or by Will: s. 71(2.1).

Such designations may be revoked by those same methods: s. 71(2.11). [48] It is clear from the language of the statute, that the designated benefit is not perfected until the death of the plannedparticipant. The designation can only be made in two ways – in writing (signed by the participant or their legal representative) before awitness, or by Will.

The designation is revocable in the same manner. [49] At common law, the determination of whether a disposition is testamentary in nature has its focus on when the dispositiontakes effect (on death), its revocability during the donor’s lifetime, and that it effects no change in the rights of the donor and donee,during the lifetime of the donor: Cock v Cooke (1986) 1 LRP&D 241; Elliot v Turner (ON SC), [1944] 2 DLR 313.Recently, in the case of Mak (Estate) v Mak, 2021 ONSC 4415, the Ontario trial court held that a beneficiary designation made on aRRIF account was testamentary in nature, and as a result the presumption of resulting trust did not apply. [50] I am satisfied that beneficiary designations made in accordance with the provisions of

section 71 of the Wills and SuccessionAct are testamentary in nature and that the presumption of resulting trust does not apply to such designations. [51] First, the legislation provides two equally valid methods of designating a beneficiary for the various instruments set out insection 71 – either by witness signature on the face of the instrument, or by Will. Had Ms. Roberts chosen to designate Peggy Campbell

as the TFSA beneficiary in her Will, no presumption of resulting trust would arise. As an executor with capacity and absent undue influence, she would have been presumed to intend the benefit. There is nothing in the statutory language of

section 71 which suggests that designation on the face of the instrument does not have the same effect. [ 52 ] Second, the benefit conferred is distinguishable from the inter vivos transfers, to which the presumption of resulting trust applies, most notably because it does not give the beneficiary any rights during the owner’s lifetime. The owner is free to revoke the designation at anytime and the benefit itself passes on death of the owner.

As a result, the designated beneficiary is not holding any interest in trust for the benefit of the transferor. [ 53 ] Third, the beneficiary’s interest is only enforceable after the death of the instrument holder. [ 54 ] While the Wills and Succession Act does not explicitly state that the designated benefit does not form part of the Estate and is not subject to claims by creditors (as is provided in the Insurance Act , RSA 2000, c I-3 , for example), the

section sufficiently creates parallel and equally enforceable methods for designating a beneficiary, whether on the face of the instrument or by Will. The inclusion of beneficiary designations in the Wills and Succession Act lends support to the conclusion that it was the intention of the Legislature to give testamentary effect to beneficiary designations made in either manner. [ 55 ] If I am incorrect in my

interpretation of

section 71, I am satisfied on the evidence that Peggy has rebutted the presumption of resulting trust and proven that Ms. Roberts intended to benefit Peggy directly. [ 56 ] The beneficiary designation itself is direct objective evidence of her intent. The language contained in the designation is clear, and simple. The document itself provides for the designation of multiple beneficiaries or no beneficiary at all, and provides a warning that the Estate may be liable for taxes despite the designation of an individual beneficiary. Ms. Roberts gave Ms.

Fairgreave the name and information of her designated beneficiary, Ms. Fairgreave witnessed her signature to the document, Ms. Fairgreave followed a standard practice in reviewing the designation with her, and there is no reason to believe that she deviated from this practice. [ 57 ] The designation of Peggy Campbell as the sole beneficiary was made despite Ms. Robert’s designating joint personal representatives in her Will, and providing for equal division of the assets of her Estate among all of her children and her grandchild. The beneficiary designation was made after the date of the Will.

On all of the evidence there is no reason to believe that Ms. Roberts was not aware of the contents of her Will at the time she completed the beneficiary designation, and given her financial acumen throughout her lifetime, had a full understanding of the nature and effect of completing the beneficiary designation as she had. There is no evidence to suggest that Ms. Roberts lacked capacity to make the designation or was unduly influenced by Peggy. [ 58 ] Ms.

Roberts understanding of the nature and effect of the beneficiary designation is illustrated by her conversation with her daughter Constance who questioned her about the designation and her understanding of its effect, stating, “I’m not stupid. I know what I am doing.” While this statement is hearsay in nature, it meets the test for admissibility. Ms. Roberts is now deceased and cannot be examined in this manner. The statement is reliable because it is a statement against Constance’s interest as a potential beneficiary of the Estate.

Its probative value outweighs its prejudicial effect, as it provides insight into Ms. Roberts’ intent and her understanding of the nature and effect of the document. [ 59 ] Further, there is evidence before the court that Peggy had provided financial assistance to her mother during her lifetime, for which she had not sought reimbursement from her mother or her siblings. By virtue of her appointment as her mother’s attorney under the power of attorney, and as joint personal representative of her Estate, it is clear that her mother trusted her to assist her in matters financial both before and after her passing.

It is reasonable to draw an inference that she intended the benefit of the TFSA to compensate Peggy for funds disbursed on her behalf and for her assistance throughout her lifetime. [ 60 ] Accordingly, I find that the TFSA does not form part of the Estate, but belongs to Peggy Campbell, pursuant to the beneficiary designation. Issue Four: Expenses Incurred by the Personal Representatives [ 61 ] Ms.

Roberts’ Will provides for payment of all expenses in connection with administration of her Estate to be paid out of her Will. [ 62 ] Pursuant to the Surrogate Rules , AR 130/95 [ Surrogate Rules ], personal representatives are entitled to be reimbursed for those expenses, reasonably incurred by them, in carrying out their duties and for any fees paid to professionals such as lawyers and accountants in assisting in providing administration services. [ 63 ] An assessment must therefore be made as to the reasonableness of the charges incurred.

a) Moving Expenses [ 64 ] The personal representatives incurred various expenses associated with moving Ms. Roberts’ personal effects from Lethbridge, Alberta to Pitt Meadows, British Columbia. Those moving expenses are supported by receipts and total $4,162.58. They include the cost of renting a U-Haul van to transport items from Ms. Roberts’ last residence to a storage facility in Lethbridge, Alberta, and to store the goods for 2 months. They also include travel and accommodation costs incurred by Peggy and Constance in March 2018 to facilitate the move of Ms.

Roberts’ belongings from Lethbridge to Pitt Meadows and the hiring of a professional mover. [ 65 ] Douglas, Catherine, and Dianne object to this expense on the basis that Douglas could have moved these items himself, at nominal expense, utilizing his van. This still would have resulted in the cost of Douglas making a round trip, and Peggy and Constance travelling to Lethbridge, as well as the original charges associated with moving the items from her residence to the storage facility in Lethbridge.

[ 66 ] The cost savings would relate only to the cost of hiring the professional mover to move the items from Lethbridge to Pitt Meadows and reflects $1,886.48 of the entire cost incurred. The personal representatives hired a bonded and insured moving company to move Ms. Roberts personal effects to British Columbia for distribution to the beneficiaries. They were ensuring that the property was secure and protected for transport. I am satisfied that this was reasonable given both the distance of the move and the time of year (March) in which it occurred. [ 67 ] Accordingly, I find the moving expense to be reasonable and it will be reimbursed from the Estate in the amount of $4,162.58.

b) Accounting Costs [ 68 ] The total accounting costs claimed are $1,785.00, and include the preparation and filing of the 2017 and 2018 T1 General Returns, the T3 Trust Income Tax Return, and requesting the Tax Clearance Certificate. [ 69 ] Douglas, Catherine, and Dianne argue that the personal representatives could have hired a tax service provider as opposed to a chartered accountant. [ 70 ] Given the nature of the services provided, the use of a chartered accountant is not unreasonable and the accounts rendered are not unreasonable for the services provided. Accordingly, the Estate shall reimburse the cost of accounting fees incurred in the sum of $1,785.00.

c) Legal Fees [ 71 ] The personal representatives seek recovery of all pre-litigation legal fees in the total sum of $11,349.55. These reflect the steps associated with the application to pass the Estate accounts and various communications with counsel for Douglas, Catherine, and Dianne in relation to the matters now before the court. [ 72 ] The personal representatives state that the retainer of legal counsel was necessary to assist them with more complex court matters, once the dispute arose about both the TFSA and the expense reimbursement.

They say that this dispute was brought about by the actions of Douglas, Catherine, and Dianne. [ 73 ] Douglas, Catherine, and Dianne take the position that no costs would have been incurred but for the hostile actions of the personal representatives. [ 74 ] Even aside from the credibility findings and my ultimate determination in this matter, it was not unreasonable for the personal representatives to retain and instruct counsel to assist them to responding to the various demands made for document production, and dealing with the contentious matters which arose.

Up to that point in time, the personal representatives had administered the Estate without a grant of probate and had worked diligently to ensure that no legal costs were incurred in the administration of the Estate. A review of the legal fees invoiced disclose reasonable charges given the nature of the services provided. Accordingly, the legal fees will be reimbursed by the Estate in the sum of $11,349.55.

d) Executor’s Fee [ 75 ] The personal representatives seek an executor’s fee of 3%, which totals $5,021.44. They rely upon the Surrogate Rules and the Estate Administration Act, SA 2014, c E-12.5 , which provide that a personal representative may receive fair and reasonable compensation for their responsibility in administering an Estate by performing the various duties required of them.

Any compensation charged is to be a reflection of the gross value of the Estate, the complexity of the work involved, the amount of skill, labour, or responsibility required, the time expended, and whether or not the personal representatives were required to perform additional roles to administer the Estate, encountered unusual difficulties, or had to instruct on litigation. [ 76 ] Douglas, Catherine, and Dianne do not deny that the personal representatives are entitled to an executor fee, but say that it should be awarded at a rate of 2% in the total sum of $3,347.63. [ 77 ] Up to the point that the dispute arose between the parties regarding the TFSA and the reimbursement of expenses, the Estate was straightforward and was administered without difficulty by the executors.

It was only after the dispute arose and the litigation ensued, that the personal representatives’ role became more complex, and time consuming. [ 78 ] Having regard for the fact that the personal representatives engaged counsel, filed and responded to numerous pleadings, attended for questioning, and a one-day viva voce hearing they are entitled to a reasonable executor’s fee. The Suggested Fee Guideline recommends compensation between 3-5%, in relation to the first $250,000.00 of gross capital of an estate.

Given the Estate value of $167,381.25, a figure of 3% would amount to $5,021.44. [ 79 ] I award the sum of $4,000.00, which balances both the ease of initial administration and the complicated elements after the applications before the Court became necessary. Conclusions [ 80 ] In

summary: • The TFSA does not form part of Ms. Roberts’ Estate, but is the sole property of Peggy Campbell, in accordance with the beneficiary designation;

• The Estate shall reimburse the Personal Representatives expenses totalling $21,297.13. Costs [ 81 ] If the parties are unable to agree as to costs, they may arrange for a one-hour hearing on this issue. Heard on the 10 th Day of September, 2021 Dated at Lethbridge, Alberta this 26 th Day of November, 2021 J.C. Kubik J.C.Q.B.A. Appearances: Sarah A. Lebeau, Davidson & Williams LLP Counsel for the Applicants Ben Tarnow, Taylor & Blair LLP Counsel for the Respondents