Morrison Estate, 2018 BCSC 2179

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Morrison Estate, 2018 BCSC 2179 Date: 20181210 Docket: 14464 Registry: Salmon Arm In the Matter of the Estate of Violet Morrison, Deceased Before: Master R.W. McDiarmid Reasons for Judgment Counsel for the Public Guardian and Trustee of British Columbia: D.L. Polley Counsel for Stefania Morrison: A. Schalles Place and Date of Hearing: Salmon, B.C. November 22, 2018 Place and Date of Judgment: Salmon Arm, B.C. December 10, 2018 [ 1 ] Violet Morrison (the “Deceased”) died on September 22, 2011 and left a will dated October 13, 1983.

The will appointed her sons, John Morrison and Roger Morrison, to be the executors and trustees of her estate, and divided the residue of her estate into two equal shares; one such share to each of her sons. [ 2 ] Her son, Roger Morrison, survived the Deceased, but died on November 8, 2012, a little over 13 months after the Deceased’s passing. [ 3 ] During that period, John Morrison and Roger Morrison informally administered the estate without obtaining a grant. [ 4 ] Following the death of Roger Morrison, his widow, Stefani Morrison, sought and was granted probate of his estate by order of this court made February 21, 2013 and entered February 27, 2013. [ 5 ] Disagreements arose with respect to the administration of the Deceased’s estate and, on January 25, 2016, Madam Justice Donegan made an order passing over John and Stefania as executors and appointing the Public Guardian and Trustee of British Columbia (“Public Guardian”) as administrator with will annexed. [ 6 ] Brad Anderson, a solicitor working in the Estate and Personal Trust Services Division of the Public Guardian, directed the preparation of accounts in a way which set out the accounts in a reasonable and understandable format, although not in the form required to pass accounts formally before the court.

Mr. Anderson, on behalf of the Public Guardian, then sought the consents of the two beneficiaries, John Morrison and Stefania Morrison, in her capacity as executor of the estate of Roger Morrison. Stefania Morrison was prepared to consent to the passing of accounts. [ 7 ] John Morrison initially pointed out that the accounts as presented failed to take into account the sum of $2,700.00 which ought to be deducted from Roger Morrison’s share of the estate due to withdrawals made from the Deceased’s Credit Union account which Stefania Morrison could not account for. [ 8 ] Mr.

Anderson directed the preparation of an Amended Statement of Distribution which added the sum of $2,700.00 to the net value of the estate and then deducted the same amount from Roger Morrison’s shares and interim distribution. [ 9 ] In his dealings with John Morrison, Mr. Anderson was informed by John Morrison that he would not approve the estate accounts and would require a court passing. [ 10 ] The Public Guardian then retained Mr.

Polley who filed and served an application dated October 17, 2018 and attended before me to pass the accounts. [ 11 ] A Notice of Application and supporting documentation was served on counsel on behalf of Stefania Morrison and on John Morrison. Stefania Morrison filed an Application Response on November 22, 2018 consenting to the accounts. [ 12 ] It was apparent that John Morrison was aware of the date for the passing of accounts.

I was advised by court registry staff at the Salmon Arm Registry that he had, on the previous day, inquired by telephone as to whether or not the matter was proceeding and was told that it was proceeding. He was paged after the matter was called. He did not attend. [ 13 ] Because the formal passing of accounts was required, the Public Guardian retained McLaren Trefanenko, Chartered Professional Accountants, to prepare estate accounts in Form P40. They submitted a bill for $1,633.80, broken down to a fee of $1,556.00 and GST of $77.80.

They rendered a further account to finalize the estate accounts in Form P40 and charged $1,590.75, a fee of $1,515.00 and GST of $75.75. As both of those accounts were rendered after June 30, 2018, they are not set out on the accounts

passed by me. They do form part of the estimated reserve of $25,000.00 for final income tax, accounting and legal costs. If they have not already been paid, I authorize payment of those accounts by the Public Guardian. [ 14 ] Counsel on behalf of Stefania Morrison has submitted that the costs of Stefania Morrison and the costs to the estate of the formal passing should be paid from the portion of the estate bequeathed to John Morrison.

In her Application Response, Stefania Morrison, in her capacity as executor of the estate of Roger Morrison, sets out that she consents to the granting of the orders in the Notice of Application on the condition that the costs of the hearing be paid out of John Morrison’s share of the estate. [ 15 ] Generally, both the personal representative and beneficiaries obtain their costs for participating in a passing of accounts out of the estate. However, Rule 14-1(16) of the Supreme Court Civil Rules , B.C.

Reg. 168/2009 [ Civil Rules ] provides that if it is ordered that any costs are to be paid out of an estate or property, the court may direct out of what portion of the estate or property the costs are to be paid. [ 16 ] Stefania Morrison, in her Response, submits as follows: 4. If a beneficiary unreasonably refuses to approve the personal representative’s accounts, thereby requiring a formal passing of accounts, the beneficiary may be denied any costs out of the estate, and the costs of the hearing may be ordered to be paid out of his or her share of the estate. Chevrefils Estate , 2010 BCSC 753 ; Andersson v.

Khan Estate , 2006 BCSC 521 , affirmed 2007 BCCA 532 [ 17 ] In Andersson , the plaintiff had brought a claim against the estate, was unsuccessful, and was ordered to pay the costs of that claim. The decision of Mr. Justice Williams at trial was upheld by an oral decision of the Court of Appeal delivered by Madam Justice Newbury dismissing both the appeal from Mr. Justice Williams’ decision and a cross-appeal.

It is not a case directly on point. [ 18 ] I respectfully agree with what District Registrar Sainty wrote in Chevrefils Estate , 2010 BCSC 753 at para. 31 , where she wrote: ...I am of the view that there was no rational reason for Catherine Croft's refusal to agree to the Accounts. She did not provide any particulars for her refusal - … [ 19 ] In this case, there was an error in the accounts and they were amended, but once amended, there was no reason for refusing to consent to their passing. [ 20 ] On November 26, 2018, Mr. Polley sent a letter to Supreme Court Scheduling in Kamloops.

The body of the letter is as follows: Please find enclosed submission of the following documents: 1. Letter from Glazier Polley to Supreme Court scheduling dated November 26, 2018 representing the submissions of the Public Guardian and Trustee (PGT) with attached Statement of Account dated November 26, 2018. 2. Accounting service invoice of McLaren Trefaneko of July 31, 2018. 3. Accounting service invoice of McLaren Trefaneko of September 10, 2018. 4. Letter from Glazier Polley to Mr. John Morrison of November 26, 2018 regarding Order Made after Application; and 5.

Letter from McKenzie Peak to Supreme Court scheduling dated November 22, 2018 representing the submissions of Stefania Morrison with attached Statement of Account dated November 23, 2018. [ 21 ] I have reviewed those documents. [ 22 ] I have also reviewed a letter of the same date, November 26, 2018, sent by attachment to email to John Morrison enclosing a draft copy of the Order I granted on November 22, 2018, together with the documents referred to in the preceding paragraph.

The concluding two paragraphs of that letter, after setting out in some detail the description of the enclosures, is as follows: Please be advised that Master McDiarmid is prepared to consider any written material you wish to submit relating to the issue of costs for the application. In other words, if you wish, you may submit material relating to the issues reserved by Master McDiarmid as set out above and as set out in the draft order. As a matter of clarification, the estate accounts have now been passed by the court.

You have not been invited to submit any material relating to the estate accounts generally as that matter has now been decided. The Master did not specifically set a deadline for the receipt of your material, however, he directed that submissions by the PGT and by Stefania Morrison on the issue of costs be delivered to Supreme Court scheduling no later than December 10, 2018.

If you intend to submit any material, I would urge you to do so prior to December 10, 2018 and that, if you have any concerns in relation to time limits, or if you require more time, that you direct your inquiries to Supreme Court scheduling at 455 Columbia St., Kamloops, BC V2C 6K4 attention Brenda Strain. [ 23 ] I have received no submissions from Mr. Morrison. [ 24 ] I have directed my judicial administrative assistant in Kamloops to add the materials I have received to the Application Record provided to me at the hearing in Salmon Arm on November 22, 2018.

The November 26, 2018 covering letter and documents referenced therein are to be added to the binder at tab 6. The November 26, 2018 letter sent by attachment to email to John Morrison, together with the covering email from Mr. Polley’s legal assistant to Mr. Morrison will be added to the Application Record at tab 7. I direct that the Application Record be marked as exhibit 1 at the passing of accounts.

[ 25 ] John Morrison was entitled to have the accounts prepared in the manner required by the Civil Rules . He was entitled to object to a portion of the accounts, which he did. [ 26 ] Once the amended accounts were prepared in the proper format, there was no reason to require a formal passing of those accounts. All issues concerning him had apparently been dealt with. [ 27 ] I have the jurisdiction to summarily assess costs of this passing of accounts.

The materials for a formal passing of accounts needed to be prepared; what was an unnecessary expense caused to the estate was the need to have counsel for the Public Guardian and counsel for Stefania Morrison put their clients to the expense of travelling to Salmon Arm to speak to the passing of accounts, recognizing that the position of John Morrison made those personal attendances by counsel at the very least proper and probably necessary. [ 28 ] I have reviewed the materials, including the letter from Mr. Polley which addressed relevant factors for assessment of special costs.

The letter from McKenzie Peak dated November 23, 2018 similarly addresses relevant considerations for assessment of special costs. [ 29 ] I assess the special costs of Mr. Polley and allow them as presented at $6,036.81. Half of the bill, $3,018.41, should be paid by the estate. Half of the bill, $3,018.40, should be paid from the portion of the estate to be paid to John Morrison.

The effect of this is that John Morrison pays in effect three-quarters of the bill and Stefania Morrison pays one-quarter of the bill. [ 30 ] With respect to the claim for special costs by Stefania Morrison, I assess costs at 80% of the fees presented. The fees are presented at $1,900.00; 80% is $1,520.00. Applicable taxes on the fees are $182.40. Disbursements are allowed as claimed at $161.00, plus applicable taxes which amounts to $180.32. In total, the special costs of Stefania Morrison in the all-inclusive amount of $1,882.72 are assessed and are payable from John Morrison’s share. [ 31 ] I direct Mr.

Polley to draft an Order reflecting these reasons and to send it to Ms. Schalles for her approval as to form. The Order may be entered in the Salmon Arm Registry utilizing scanned counter-part signatures. “Master R.W. McDiarmid” MASTER McDIARMID