JOANNE MARIE CAMERON Applicant And: KEITH SMITH, EXECUTOR OF THE ESTATE OF WALTER KULLMAN Respondent - v. –, 2022 NLSC 159

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kullman Estate (Re) , 2022 NLSC 159 Date : November 3, 2022 Docket : 201101E9516 In The Matter of the Estate of Walter Kullman, late of the City of St. John's, in the Province of Newfoundland and Labrador And In The Matter of an Application pursuant to

section 123 of the Judicature Act , R.S.N.L. 1990, c. J-4 Between: JOANNE MARIE CAMERON Applicant And: KEITH SMITH, EXECUTOR OF THE ESTATE OF WALTER KULLMAN Respondent - AND – Docket: 201701E15921 In The Matter of the Estate of Dorothy Josephine Kullman, late of the City of St. John's, in the Province of Newfoundland and Labrador And In The Matter of an Application pursuant to

section 123 of the Judicature Act , R.S.N.L. 1990, c. J-4 Between: JOANNE MARIE CAMERON Applicant And: KEITH SMITH, EXECUTOR OF THE ESTATE OF DOROTHY JOSEPHINE KULLMAN Respondent

Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador

Summary: Keith Smith is the executor of the estates of Dorothy Kullman and Walter Kullman. Due to illness, he is now unable to continue to act.One of the two beneficiaries of the estates has asked the Court to appoint a replacement for Mr. Smith. Each of Mr. Smith and the twobeneficiaries consent to his removal and to the appointment of John V. O’Dea, K.C. in his place. A question arose as to whether O’Dea,K.C., should be appointed as executor or administrator. Pursuant to

section 123 of the Judicature Act, it was ordered that Keith Smith be removed as executor of the estate of Walter J. Kullmanand of the estate of Dorothy Kullman. Letters of administration, with will annexed, of both estates were granted to John V. O’Dea, K.C.as administrator, c.t.a. Appearances: Anna M. Wadden For the Applicants No Appearance On behalf of the Respondents Authorities Cited: CASES CONSIDERED: Kinnee v. Malloy, [1894] O.J. No. 197, 24 O.R. 395 (H.C.J. (Ch. Div.)); Laking, Re, (ONSC), [1972] 1 O.R. 649, 24 D.L.R. (3d) 5 (Surr. Ct.); Sharon, Re, (SK KB), [1979] 5 W.W.R. 547, 5 E.T.R. 48 (Sask.Surr.

Ct.); Fleming v. Fleming, 2006 NLTD 112; Shea v. Parsons Estate (1997), (NL SC), 150 Nfld. & P.E.I.R. 247,470 A.P.R. 247 (Nfld. S.C.(T.D.)); Hickey Estate, Re, 2004 NLSCTD 29; MacLean v. Secord Estate, 2009 NBQB 214; Rushton v.Holton Estate, 2021 NBQB 51; Black v. Gladstone Estate, 2005 NBQB 244 STATUTES CONSIDERED: Judicature Act, R.S.N.L. 1990, c. J-4 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Stack J.: INTRODUCTION [1] This case involves the removal of an executor to whom probate was granted and whether their replacement should be as anexecutor or an administrator.

[2] Walter J. Kullman died on or about January 7, 2011. In his last will and testament, he appointed his wife, Dorothy Kullman, asexecutrix. His last will and testament was proven and registered in the Court on January 31, 2011, following which letters of probatewere granted to Dorothy Kullman. [3] Dorothy Kullman died on or about January 22, 2017. In her last will and testament, she appointed Keith Smith as executor. IfKeith Smith was unable to act as executor, Dorothy Kullman appointed her son, John Kullman, to be the alternate executor.

Her last willand testament was proven and registered in the Court on February 28, 2017, following which letters of probate were granted to KeithSmith. [4] Upon her passing, by operation of law, the duties of Dorothy Kullman as executor of the estate of Walter J. Kullman fell uponKeith Smith, her executor. Although no authorities from this jurisdiction have been cited, this common law principle has been expressedby other courts; see, Kinnee v. Malloy, [1894] O.J. No. 197, 24 O.R. 395 (H.C.J. (Ch. Div.)), Laking, Re, (ON SC),[1972] 1 O.R. 649, 24 D.L.R. (3d) 5 (Surr.

Ct.), and Sharon, Re, (SK KB), [1979] 5 W.W.R. 547, 5 E.T.R. 48 (Sask.Surr. Ct.). [5] Due to illness, Keith Smith is now unable to continue to act as executor of the estates of Dorothy Kullman and Walter J.Kullman. Canada Revenue Agency has recently contacted the estates’ solicitor, John V. O’Dea, K.C., about the status of the estates ascertain income tax returns have not been filed. [6] The only two people entitled to share in the estates of Walter J. Kullman and Dorothy Kullman are their children: theapplicant, Joanne Marie (Kullman) Cameron, and John Kullman, both of whom reside outside the Province.

The applicant has asked theCourt to appoint a replacement for Keith Smith as the executor of the estates of Dorothy Kullman and Walter J. Kullman because of hisincapacity to act. [7] Although John Kullman is the alternate executor named in the will of Dorothy Kullman, he is not prepared to act. Both JohnKullman and Joanne Marie Cameron consent to the appointment of O’Dea, K.C., to complete the administration of the two estates. ISSUE [8] When the matter came to me to be considered as a desktop application, I asked counsel to provide submissions on

section 123of the Judicature Act, R.S.N.L. 1990, c. J-4 (the “Act”), and whether the replacement of an executor in these circumstances should be asan executor or administrator.

Having reviewed the helpful submissions, I will now provide my reasons as to why I have ordered that inrespect of each of the estates, O’Dea K.C. be appointed administrator with will annexed.[1] THE LAW [9] It has long been recognized that the Court has an inherent power as part of its jurisdiction relating to estate administration toeffect removal of an administrator or executor of a deceased’s estate to ensure that an estate is properly administered[2] (see, forexample, Fleming v. Fleming, 2006 NLTD 112). In addition, this power has been codified in the Act. [10] Sections 123 and 127 of the Act provide: 123.

Upon the application of a person interested in the estate of a deceased person, the court may, by order, remove an executor oradministrator upon the same grounds that the court may remove a trustee, and may appoint some other person to act in the place of theexecutor or administrator so removed. … 127. Where a person renounces probate of the will of which that person is appointed executor or 1 of the executors (

a) the rights of that person to act as executor stop; and (

b) the representation to the testator and the administration of the estate of the testator may proceed as if that person had not beenappointed executor. [11] Rule 56 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (the “Rules”) governs probate and administration. Rule 56.01 says: 56.01. Where the deceased died leaving a will, the priority of right to a grant of probate or administration with will annexed shall be,subject to the discretion of the judge, as follows: (

a) executors;

(

b) residuary legatees or devisees in trust; (

c) residuary legatees or devisees for life; (

d) ultimate residuary legatees, or devisees or, where the residue is not wholly disposed of, the persons entitled upon an intestacy(but this does not include the Crown); (

e) the legal personal representatives of persons indicated in rule 56.01(d); (

f) legatees or devisees, or creditors; (

g) contingent residuary legatees or devisees, or contingent legatees or devisees, or persons, having no interest in the estate, whowould have been entitled to a grant had the deceased died wholly intestate; (

h) the Crown. [12] Green C.J.T.D. (as he then was), addressed the removal a personal representative, in that case an administratrix, in Fleming. Atparagraph 11, he emphasized that the task will not be lightly undertaken: 11 The removal of a trustee or personal representative is something that will not be lightly undertaken. Before doing so, the court hasto be satisfied that it is in the interests of the beneficiaries generally that removal should occur. As Lord Blackburn stated in Letterstedt v.Broers, [1881-85] All E.R.

Rep. 882 (South Africa P.C.) at p. 887 (a case cited consistently by courts in this province) the court’s “mainguide must be the welfare of the beneficiaries”.

If it is clear that the continuance of the trustee or personal representative in office wouldbe detrimental to the execution of the trusts or the administration of the estate, the court may remove him or her. [13] Green C.J.T.D. went on to set out the grounds for removal at paragraph 12: 12 The grounds upon which a trustee, and hence an executor or administrator, may be removed include: positive misconductamounting to abuse of trust; endangerment of the estate or trust property; want of honesty or reasonable fidelity; lack of proper capacityor ability to execute the duties of office; and conflict of interest.

See, Letterstedt; Hickey Estate, Re, [2002] N.J. No. 225 (Nfld. T.D.);Hickey Estate, Re, [2004] N.J. No. 52 (N.L. T.D.); Powers v. Powers Estate, (NL SC), [1988] N.J. No. 19 (Nfld.T.D.); Tapper v. Sair-Segev (2003), 2003 MBQB 243 , 178 Man. R. (2d) 271 (Man. Q.B.). ANALYSIS [14]

Section 123 of the Act grants the Court authority to remove an executor or administrator and to appoint some other person toact in that person’s place. Where a person renounces probate of a will,

section 127 of the Act says the administration of an estate mayproceed as if an executor had not been appointed. Rule 56 of the Rules sets out the priority of right to a grant of probate or administrationwith will annexed, but that priority of right is subject to the discretion of the judge. [15] Two cases have been identified where this Court was called upon to remove an executor. Although in both cases thereplacement was named as administrator, and not as executor, nevertheless two different approaches were followed. [16] In Shea v. Parsons Estate (1997), (NL SC), 150 Nfld. & P.E.I.R. 247, 470 A.P.R. 247 (Nfld.

S.C.(T.D.)),the Court ordered an executor to be removed and appointed the Registrar as administrator of the estate pursuant to

section 123 of the Act. [17] In Hickey Estate, Re, 2004 NLSCTD 29, the person named as executor in a will delayed making an application for probate.One of the beneficiaries brought an application under

section 123 of the Act to prohibit the named executor from applying for letters ofprobate. The application was granted and the applicant beneficiary was appointed administrator c.t.a. [18] Similar circumstances have been considered in New Brunswick. In MacLean v. Secord Estate, 2009 NBQB 214, the namedexecutor was removed and the replacement was directed to apply for letters of administration with will annexed. In Rushton v.

HoltonEstate, 2021 NBQB 51, the court ordered the removal of an executor and directed that the second alternate executor named in the willapply for letters of administration with will annexed. [19] We can see that in each of the cases referred to, the executor who was removed was replaced by an administrator, not by anexecutor.[3] In this jurisdiction, there has been a mixed approach, however, as to whether the executor should be replaced by anadministrator or an administrator, c.t.a.:

(1) In Shea, an executor was removed and an administrator was appointed as replacement; and

(2) In Hickey, the individual entitled to be appointed executor by the court was replaced with an administrator with will annexed.

[ 20 ] The result in Hickey is echoed in the New Brunswick cases of MacLean and Rushton . [ 21 ] In this case, where for health reasons Keith Smith cannot continue to act as executor, and he and the beneficiaries all consent to his removal, the decision to order him removed is straightforward. As to whom should replace him, the residuary legatees have no interest in administering the estates (John Kullman has, in effect, renounced probate). They agree that Keith Smith should be removed as executor of the two estates and ask that O’Dea K.C. be appointed as administrator in his place.

Notwithstanding the order of right of appointment set out in Rule 56, I will exercise my discretion to appoint O’Dea, K.C. [ 22 ] I adopt the approach taken in Hickey , MacLean and Rushton : because the estates will be administered in accordance with the respective wills, O’Dea K.C. should be named as administrator with will annexed. CONCLUSION [ 23 ] Pursuant to

section 123 of the Act , it is ordered that:

(1) Keith Smith be removed as executor of the estate of Walter J. Kullman and of the estate of Dorothy Kullman;

(2) Letters of administration, with will annexed, of the estate of Walter J. Kullman shall be granted to John V. O’Dea, K.C. as administrator, c.t.a.; and

(3) Letters of administration, with will annexed, of the estate of Dorothy Kullman shall be granted to John V. O’Dea, K.C. as administrator, c.t.a. [ 24 ] The costs of the applications shall be paid in equal part out of each of the estates, or as O’Dea K.C., in his capacity as administrator, c.t.a., shall decide. _____________________________ Robert P. Stack Justice