r v. LeBouthillier et al., 2014 NBCA 68

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 02-14-CA THE ESTATE OF SAMUEL LEBOUTHILLIER (deceased), and PAMELA LEBOUTHILLIER, ADMINISTRATRIX OF THE ESTATE OF SAMUEL LEBOUTHILLIER APPELLANTS LA SUCCESSION DE SAMUEL LEBOUTHILLIER (personne décédée), et PAMELA LEBOUTHILLIER, administratrice de la succession de SAMUEL LEBOUTHILLIER APPELANTES - and - - et - PHILIBERT LEBOUTHILLIER, EUCLIDE LEBOUTHILLIER, RÉJEAN LEBOUTHILLIER, DENIS LEBOUTHILLIER, and LISETTE LEBOUTHILLIER RESPONDENTS PHILIBERT LEBOUTHILLIER, EUCLIDE LEBOUTHILLIER, RÉJEAN LEBOUTHILLIER, DENIS LEBOUTHILLIER, et LISETTE LEBOUTHILLIER INTIMÉS LeBouthillier v.

LeBouthillier et al., 2014 NBCA 68 LeBouthillier c.

LeBouthillier et autres, 2014 NBCA 68 CORAM: The Honourable Justice Deschênes The Honourable Justice Bell The Honourable Justice Quigg CORAM : l’honorable juge Deschênes l’honorable juge Bell l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: December 9, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 9 décembre 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 404 Décision frappée d’appel : 2013 NBBR 404 Appeal heard: March 26, 2014 June 30, 2014 Appel entendu : le 26 mars 2014 le 30 juin 2014

Judgment rendered: November 20, 2014 Jugement rendu : le 20 novembre 2014 Reasons for judgment by: The Honourable Justice Bell Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Counsel at hearing: For the appellant Pamela LeBouthillier: Rita Godin For the respondents Philibert LeBouthillier and Lisette LeBouthillier: No one appeared For the respondents Euclide LeBouthillier, Réjean LeBouthillier and Denis LeBouthillier : Appeared in person Motifs de jugement : l'honorable juge Bell Souscrivent aux motifs : l'honorable juge Deschênes l’honorable juge Quigg Avocats à l’audience : Pour l’appelante Pamela LeBouthillier : Rita Godin Pour les intimés Philibert LeBouthillier et Lisette LeBouthillier : personne n’a comparu Pour les intimés Euclide LeBouthillier, Réjean LeBouthillier et Denis LeBouthillier : ont comparu en personne THE COURT The appeal is allowed in part.

The monies in dispute in this case are divided as follows, pursuant to s. 22(2.1) (

b) and s. 23 of the Devolution of Estates Act : one third to the appellant, Pamela LeBouthillier and two thirds to the children. LA COUR L’appel est accueilli en partie. L’argent, objet du litige en l’espèce, est réparti comme suit, en vertu de l’al. 22(2.1)

b) et de l’art. 23 de la

Loi sur la dévolution des successions : un tiers à l’appelante Pamela LeBouthillier et deux tiers aux enfants. English version of the decision of the Court delivered by BELL, J.A. I. Introduction [ 1 ] Samuel LeBouthillier (Samuel), a World War II veteran, passed away on February 19, 2011, at the age of 96. The balance of his savings account at the Caisse populaire Acadie Ltée (the Caisse) was $521.68 at the time of his death. However,

Samuel had a fairly high standard of living, since he had a net income of approximately $4,000 per month and his monthly expenses fell far short of his income. The low balance of Samuel’s account is actually due to the fact that several days before his death, Réjean LeBouthillier, his son and attorney, had withdrawn $91,492.83 from the account. [ 2 ] Pamela LeBouthillier (Pamela), Samuel’s widow, was 17 years old when they married in 1945; he was 32 at the time. They had eight children. However, considering the evidence presented to the trial judge, it is evident their marriage was not always a happy one.

In fact, for about 15 years prior to 2004, their married life was limited to living under the same roof. During that period, Samuel and Pamela led separate lives. Pamela prepared her own meals, washed her own clothes and ran her own errands. Samuel did likewise. They each had their own refrigerator. Samuel even had a lock installed on his bedroom door. And, of course, they managed their money separately. [ 3 ] In May 2004, Pamela forced Samuel, who was 90 at the time, out of the marital home. On that occasion, there was an altercation during which Samuel was injured resulting in a police investigation.

After this incident, Samuel lived in a home in Caraquet from 2004 to 2005, and then in Shippagan until September 2006. He lived in the seniors’ home in Inkerman from September 2006 until his final hospitalization. According to a son, Denis, Pamela visited Samuel only once in hospital between the date he moved into the home in Caraquet and the date of his death in 2011. Their son Denis describes that visit: [TRANSLATION] That after my father Samuel LeBouthillier was placed in the nursing homes, the applicant never went to visit him, never phoned him and was never in touch with him.

The only time that the applicant went to see my father Samuel LeBouthillier was two days before he died, when he was in a coma; she was accompanied by my sister Gemma LeBouthillier and my sister’s partner Bruno Selosse, and stayed for no more than two to five minutes. I was present on that occasion, as were my brothers Euclide and Réjean. [ 4 ] Denis LeBouthillier also describes the relationship his parents had for over 20 years: [TRANSLATION] That my father never wanted to leave his home in Saint-Simon and that he had his own room on the ground floor, which he kept locked to prevent my mother from entering.

That my mother had her own room on the second floor. That my father would make his own meals and would never eat at the table with us when my mother prepared meals. That my father did not have a car and, therefore, my mother did have one.

My mother never let my father get into her car so that he could go do things or to take him to see the doctor. [ 5 ] This is how another son, Philibert LeBouthillier, describes the relationship between his parents: [TRANSLATION] That from at least 1989 on, my father and mother engaged in no activities together, and when we went over to my parents’ place to eat with my partner or children, my father was not allowed to sit at the table and eat the food that my mother had prepared. [ 6 ] It seems clear from this testimony that Pamela and Samuel led their lives without regard to one another for over 20 years.

Conversely, Samuel was close to his children, and they are the ones who looked after him and his affairs, both personal and financial. [ 7 ] It is not surprising that, as a result, Samuel would sign a power of attorney in May 2004, naming one of his sons as his attorney. That son, Euclide, is also a lawyer. In 2006, he signed a second power of attorney in favour of his

son Réjean LeBouthillier (Réjean) at the Caisse and before a Caisse employee, without however cancelling the first power of attorney dating from 2004. In 1983, pursuant to s. 47 of the Credit Unions Act , S.N.B. 1992, c. C-32.2 (hereinafter the Act ), Samuel signed an account beneficiary card nominating Pamela. However, no one but the staff of the Caisse knew the beneficiary’s name.

The relevant subsections of s. 47 read as follows: 47(2) A member of a credit union may, by document, signed by the member, witnessed, and filed with the credit union, nominate a person to whom the member’s interest in the credit union is to pass and vest upon the member’s death. 47(2) Un membre d’une caisse populaire peut, au moyen d’un document revêtu de sa signature, attesté par témoin et déposé auprès de la caisse populaire, désigner une personne à laquelle sera transmis et dévolu l’intérêt qu’il a dans la caisse populaire à son décès. 47(3) The interest of the member referred to in subsection (2) shall, on the death of that member, pass and vest in the person so nominated as fully as though passed and vested during the lifetime of the member. 47(3) L’intérêt du membre visé au paragraphe (2) est, à son décès, transmis et dévolu à la personne désignée aussi complètement qu’il l’aurait été s’il lui avait été transmis et dévolu du vivant de ce membre. 47(4) A member of a credit union may vary or revoke a nomination made by the member under subsection (2) by a document, signed by the member, witnessed, and filed with the credit union. 47(4) Un membre d’une caisse populaire peut modifier ou révoquer toute désignation qu’il a faite en vertu du paragraphe (2) au moyen d’un document revêtu de sa signature, attesté par témoin, et déposé auprès de la caisse populaire. [ 8 ] The card nominating Pamela as beneficiary of the account has not been varied since the date it was signed.

However, on or about February 15, 2011, four days before his father’s death, Euclide went to the Caisse to name his brother Réjean as beneficiary of the account. Euclide considered this new nomination to be in line with the instructions his father had given him and Réjean in 2004. Given Samuel’s incompetence, Euclide contended that the 2004 power of attorney gave him the authority to change the name of the beneficiary and to nominate Réjean. After an internal discussion, the Caisse refused to recognize the change of beneficiary and had the new card torn up.

The Caisse maintained that only the Caisse member who held the interest could vary the beneficiary nomination. [ 9 ] On February 15, 2011, in light of his father’s precarious health, Réjean withdrew $10,000 from his father’s account in order to pay future funeral expenses. On February 16 and 18, 2011, shortly before Samuel died, Réjean withdrew $91,492.83 from the account. In April 2011, following an ex parte motion, a judge ordered that Réjean put back the money withdrawn from Samuel’s account and that the account be frozen until the matter could be determined.

No final decision was made concerning Réjean’s right to withdraw the money from the account. [ 10 ] In October 2012, Samuel’s estate filed a Notice of Application under s. 22(2.1) of the Devolution of Estates Act , R.S.N.B. 1973, c. D-9. In it, the Estate sought to have Pamela declared the owner of the marital home, a vacant lot registered in Samuel’s name and [TRANSLATION] “any amount that is currently in Samuel LeBouthillier’s bank account […]”. The parties reached an agreement on the first two points.

The final point, namely who was entitled to the money in the account at the Caisse, was argued in court. [ 11 ] The judge determined that the case raised two issues [TRANSLATION]: 1. Ought the Caisse to have replaced Samuel’s beneficiary card with the attorney Euclide’s? (In order to answer this question, the judge had to interpret the word “member” in s. 47(4) of the Act and decide the consequences of the fact that the Caisse had torn up the card provided by Euclide). 2.

Was Réjean, as attorney and agent for the account, entitled to withdraw $91,492.83 from the account prior to Samuel’s death and to distribute the funds according to Samuel’s instructions?

II. Decision of the Court of Queen’s Bench [ 12 ] The trial judge dealt only with the first issue. She found that Euclide, as attorney, became the “member” of the Caisse in Samuel’s place for the purposes of s. 47(4) of the Act . As such, he could require that the Caisse vary the name of the beneficiary of the account during Samuel’s lifetime. She ruled that the beneficiary card was neither a testamentary instrument nor a document with testamentary effects in the same way as a life insurance policy. According to the trial judge, the Caisse was wrong to reject and tear up the new card filed by Euclide.

Finally, she found that the new card signed by Euclide had the effect of “revoking” the card Samuel signed in 1983. In her view, the funds had to be distributed in accordance with the nomination card provided to the Caisse by Euclide, i.e., to Réjean in trust for himself and for his brothers and sisters.

Since the beneficiary card signed in 1983 was revoked by the one signed by Euclide in 2011, the judge found that Pamela had no right to the money in Samuel’s account. [ 13 ] According to the Estate, the issues submitted to the trial judge were not confined to whether or not Euclide had authority to sign another beneficiary card. The Estate also challenged Samuel’s competence to sign the 2006 power of attorney naming Réjean his attorney and claimed that Réjean had “exceeded his authority” by withdrawing most of the money from the account in February 2011.

Considering her decision regarding Euclide’s authority, the judge found that “the 2006 power of attorney pertaining to the funds at the Caisse is no longer in issue”. That being the case, she did not address the issue as to whether Réjean actually had the authority to withdraw the funds. III. Analysis A. The Estate and Euclide [ 14 ] The trial judge decided to recognize Euclide’s right to fill out and vary the name of the beneficiary of the account and to revoke the nomination card dating from 1983.

She explained: [TRANSLATION] Since Euclide LeBouthillier, as attorney, had the exact same rights as his father, he was in point of fact the member within the meaning of

section 47 . [...] Euclide LeBouthillier, as attorney acting on behalf of his father, became the “ member ” within the meaning of s. 47(2) of the Act . […] In the instant case, when the “ member ” changed the name on the beneficiary card to that of Réjean LeBouthillier in trust for Samuel LeBouthillier’s eight children, the previous beneficiary card dating back to 1983 was revoked. [para. 26] [ 15 ] I am of the opinion that the trial judge made several errors in her analysis.

Firstly, s. 60 of the Act prescribes who may be members of a credit union, namely its incorporators and those persons whose applications for membership are accepted by the credit union. In this case, there is no evidence showing that the power of attorney obtained by Euclide gave him the status of member of the Caisse in lieu of his father. In any event, under s. 47(4) of the Act , only Samuel could vary or revoke the nomination made in 1983. [ 16 ] Secondly, I do not share the trial judge’s opinion that Euclide, as his father’s attorney, had exactly the same rights as his father .

For example, in the absence of a legislative provision or special agreement, an attorney cannot make a will or exercise a power of a discretionary nature given personally to a donor. An attorney also cannot serve a prison term or exercise the powers or act on behalf of the donor as trustee: Desharnais v. Toronto Dominion Bank , 2001 BCSC 1695 , [2001] B.C.J. No. 2547 (QL), at para. 28 , varied 2002 BCCA 640 , [2002] B.C.J. No. 2633 (QL). See also Houston v. Houston, 2012 BCCA 300 , [2012] B.C.J.

No. 1370 (QL), at para. 49 , where the Court observes that an attorney cannot execute a last will and testament on behalf of the donor and cites the decision in Chichester Diocesan Fund and Board of Finance Inc. v. Simpson , [1944] A.C. 341 (H.L.) . [ 17 ] Finally, this Court had the opportunity to consider the issue of the testamentary nature of beneficiary cards in Goguen (Estate of) v. Hachey , 2012 NBCA 56 , 392 N.B.R. (2 d ) 114. In that judgment, the Court highlighted the two important characteristics of a testamentary gift.

Firstly, s. 47(3) of the Act provides that the interest of the member, on the death of that member, passes and vests in the person nominated. Secondly, s. 47(4) provides that the person who makes a nomination may vary it

during his lifetime. In my view, the Act is a complete code with respect to the nomination of a beneficiary. See Tower et al. v. Estabrooks et al., 2012 NBCA 27, 384 N.B.R. (2d) 389, at para. 22, leave to appeal refused [2012] S.C.C.A. No. 215 (QL). Accordingly, I am of theopinion that Euclide, as Samuel’s attorney, did not have the right to vary or revoke the nomination made in 1983. B.

The Estate and Réjean [18] As I have already indicated, the trial judge did not answer the question as to whether Réjean hadthe authority, under the 2006 Power of Attorney naming him Samuel’s attorney, to withdraw the funds from the account. The partiesonly briefly commented on this issue before us. We, therefore, suggested that they file supplementary submissions on this issue, ratherthan appearing again to make their submissions. On June 30, 2014, after filing their supplementary submissions, Euclide and the estate ofSamuel LeBouthillier appeared before us to argue this question.

At the beginning of the hearing, and after the parties had made theirsubmissions, we ordered that the style of cause be changed to name only Philibert, Euclide, Réjean, Denis and Lisette LeBouthillier asrespondents because certain individuals named in the style of cause at the Court of Appeal were not parties before the Court of Queen’sBench. Because the Application at first instance was argued mainly on the basis of affidavits, this Court considers itself in just as good aposition as the Court of Queen’s Bench to decide the issue.

We have, therefore, decided to deliver a judgment on the issues that the trialjudge ought to have determined, instead of referring the matter back to her. See Rule 62.21(1) of the Rules of Court. [19] Samuel’s mental competence at the time he signed the power of attorney in favour of Réjean onMarch 27, 2006, is not seriously in issue. In paragraph 10 of her decision, the trial judge pointed out that, according to Euclide, Samuelwas still capable of dictating his instructions and making his own decisions in 2005 and 2006.

In her affidavit, Pamela stated that Samuelleft the marital home on January 3, 2006, owing to the [TRANSLATION] “onset of dementia”. In his affidavit, Denis stated that it wasonly [TRANSLATION] “following [his] father’s transfer to the home in Inkerman that he began to be unable to manage his affairs”. Iwould point out that this transfer to the home in Inkerman took place in September 2006, approximately six months after the power ofattorney in favour of Réjean was signed.

Moreover, no medical evidence has been adduced that casts doubt on Samuel’s mentalcompetence in March 2006. [20] There is a rebuttable presumption that the donor is considered to be of sound mind at the time ofthe donation: Vout v. Hay, (SCC), [1995] 2 S.C.R. 876, [1995] C.S.C. No. 58 (QL). In the instant case, the Estate’sevidence is not sufficient to rebut the presumption that Samuel had the legal capacity to sign the power of attorney in favour of Réjean inMarch 2006.

I find that Samuel had the mental competence to sign the power of attorney naming his son as attorney. [21] The power of attorney gives Réjean the authority to act on Samuel’s behalf with respect to anysavings account at the Caisse. For example, the power of attorney gives Réjean the authority to [TRANSLATION] “withdraw bypayment order, receipt or otherwise, in whole or in part, the funds” deposited into the account.

For the sake of clarity, and withoutlimiting the generality of the foregoing, I would add that Réjean had the authority to endorse any cheque or payment order, or to receivepayment for the same, and even to close the account. Moreover, the power of attorney indicates that the agent’s authority is sufficient to[TRANSLATION] “allow the efficient and competent management of his folio in the event of” Samuel’s mental incompetence. [22] The respondents do not dispute the fact that Samuel was mentally incompetent at the time Réjean withdrew themoney from the account at the Caisse on February 16 and 18, 2011.

One, therefore, has to wonder whether the power of attorneysurvived Samuel’s incompetence. Subsection 58.2(1) of the Property Act, R.S.N.B. 1973, c. P-19, reads as follows:

58.2

(1) The authority conferred upon a donee by a power of attorney is not terminated where the donor suffers from mental incompetence after the creation of the power of attorney if the power of attorney (

a) contains a provision that expressly allows it to be exercised during such incompetence, (

b) is signed by the donor, or signed in the name of the donor by another person in the presence and at the direction of the donor, and (

c) is witnessed by an adult person other than the donee. 58.2

(1) Le pouvoir conféré à un donataire au moyen d’une procuration ne prend pas fin si le donateur souffre d’incapacité mentale après la création de la procuration si celle-ci

a) renferme une disposition permettant expressément de l’exercer pendant cette incapacité,

b) est signée par le donateur, ou signée au nom du donateur par une autre personne en présence et selon les instructions du donateur, et

c) est attestée par une personne adulte autre que le donataire. [ 23 ] Under the circumstances, the three prerequisites for the power of attorney’s “survival” of Samuel’s incompetence have clearly been met: there is a provision allowing Réjean to exercise the authority conferred by the power of attorney during Samuel’s incompetence; Samuel signed the power of attorney; and, finally, the document was witnessed by Diane Mallet, a Caisse employee. [ 24 ] In light of the wording of the power of attorney and of the evidence showing that Samuel was mentally competent to sign the power of attorney, I am of the view that Réjean was entitled to withdraw the funds from Samuel’s account.

This finding, however, does not necessarily put the matter to rest. Indeed, in order to definitively conclude that Réjean had the authority to withdraw the money from his father’s account, the Court has to determine that he withdrew the funds in Samuel’s best interests. [ 25 ] Réjean had a fiduciary duty to his father Samuel when he withdrew the money. In Egli v. Egli , 2004 BCSC 529 , [2004] B.C.J. No. 796 (QL) , upheld by the Court of Appeal in 2005, 2005 BCCA 627 , [2005] B.C.J.

No. 2741 (QL), the Court held that “[…] it is taken as a given that where there is a power of attorney, there exists a fiduciary relationship between the attorney and the donor” (para. 76). See also Houston v. Houston , 2012 BCCA 300 , [2012] B.C.J. No. 1370 (QL), at para. 23 , and Mollot v. Mollot, 2007 ABCA 183 , [2007] A.J. No. 583 (QL).

In Guide to Powers of Attorney (Aurora, Ontario: Canada Law Book, 2002) at pages 6 and 7, author Jasmine Sweatman advises as follows: […] if the attorney does act under the power of attorney he or she is seen as acting as a fiduciary and must act in good faith for the benefit of the grantor. As such, in addition to the duties expressed in the instrument, an attorney acting under a power of attorney faces the common duties of a fiduciary.

Therefore, although the fiduciary duties of agents, attorneys and trustees vary in intensity, they are essentially the same. […] The relationship between donor and attorney is therefore now recognized and codified as being fiduciary in nature. [pages 6 and 7] [ 26 ] As soon as Samuel became incompetent, Réjean had a responsibility to act solely in the interests of his father and not in his own personal interests or in the interests of others. In Richardson Estate v. Mew , 2009 ONCA 403 , [2009] O.J.

No. 1947 (QL), the Court ruled as follows: In Banton , Cullity J. held that while an attorney acting under a continuing power of attorney is always a fiduciary, the scope of the attorney’s fiduciary duties depends on whether the donor of the power is incapable at the time of the transaction. If the donor is mentally incapable, the attorney’s position approaches that of a trustee. If not, the relationship between donor and attorney is similar to one of

agency. [para. 48] [27] After withdrawing the money from the account during Samuel’s lifetime, Réjean held the money in trust forSamuel. In 2004, Samuel had advised Euclide and Réjean, in the presence of Denis and Gemma, that he wanted his money to be dividedamong his children. The question that arises is whether the fact of withdrawing the money from Samuel’s account for the purpose ofdividing it between the children, when Samuel was still alive, was in his best interests. Under the circumstances, the answer is “yes”.

Inthis case, it seems clear that Samuel did not want his wife to profit from the distribution of his money. Indeed, Samuel and Pamela hadgotten into the habit, for over 20 years, of managing their own affairs and of not interfering in the other’s affairs. That being the case, Ibelieve that, under the circumstances, if Réjean’s intention was to distribute the money according to Samuel’s wishes, he was acting inSamuel’s best interests when he withdrew the money from the account.

Moreover, I do not believe that this act was a breach of Réjean’sduty to his father to act in his father’s best interests, knowing that he was 96 years old at the time and about to die. He no longer neededsavings to meet his needs. Finally, even if Samuel had survived, he had a monthly income that far exceeded his expenses, which wouldhave been plenty for him to live out his days in comfort. [28] Euclide, for his part, maintained that he instructed Réjean to distribute the money not only among his brothersand sisters, but also among his mother (Pamela) and the grandchildren.

Yet, based on the wishes he expressed to Euclide and Réjean in2004, Samuel seemed to want to limit the distribution of his money to his children alone; as a result, Euclide’s instruction is, in my view,contrary to Samuel’s wishes and not in his best interests. Having said that, there is no evidence that Réjean intended to follow Euclide’sinstructions instead of his father’s when he withdrew the money. Without evidence to the contrary, there is a presumption that Réjeanintended to act in his father’s best interests, i.e., to follow his instructions provided that his needs were met (Galambos v.

Perez, 2009SCC 48, [2009] 3 S.C.R. 247, at paras. 77 and 78). [29] In any event, Réjean did not distribute the $91,492.83 before Samuel died. As a result, upon Samuel’s death,he no longer had the legal authority required to act on Samuel’s behalf. An attorney’s authority terminates upon the death of the donor.Under the circumstances, a constructive trust has to be applied, which implies that the money reverts to Samuel’s estate. Since Samueldied intestate, the money will have to be distributed in accordance with s. 22(2.1)(

b) and s. 23 of the Devolution of Estates Act, R.S.N.B.1973, c. D-9. Pamela is, therefore, entitled to one third of the money and Samuel’s children will share the remaining two thirds. [30] Under the circumstances, the decision would be the same even if Réjean had misunderstood his duty to act inhis father’s best interests. In fact, in the case before us, Réjean would have breached his fiduciary duty. The applicable remedy in thiscase was set out by McLachlin, J. in Soulos v. Korkontzilas, (SCC), [1997] 2 S.C.R 217, [1997] C.S.C. No. 52 (QL).

Inthat case, the judge found that a constructive trust should be imposed where a fiduciary duty has been breached: I conclude that in Canada, under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts likefraud and breach of duty of loyalty, as well as to remedy unjust enrichment and corresponding deprivation.

While cases often involveboth a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground: where there is a wrongful act but nounjust enrichment and corresponding deprivation; or where there is an unconscionable unjust enrichment in the absence of a wrongfulact, as in Pettkus v. Becker, supra […]. [para. 43] [Emphasis added.] Accordingly, if the Court had found that Réjean had acted contrary to his father’s interests, it would have recognized a constructive trust.Since Samuel died intestate, the money would have reverted to Samuel’s estate. C.

The Estate and Pamela [31] The other question that arises is whether the beneficiary card for the account at the Caisse entitles Pamela toask that the money withdrawn by Réjean be re-deposited into the account. Subsections 47(2) and (3) of the Act are clear. The money in acredit union account upon the member’s death will pass to the person nominated by the member of the credit union. The card stipulatesthat Samuel’s interest in the Caisse will be transferred [TRANSLATION] “upon [his] death”. The beneficiary card, therefore, creates noentitlement to the money in the account during the holder’s lifetime.

The money in the account will vest in the person named asbeneficiary at the time of the account holder’s death. The donor, therefore, retains the right to dispose of the account until his death.Under the circumstances, Réjean was acting on behalf of Samuel and in his best interests. Since Réjean had full authority to manage theaccount and even to close it, Pamela could not demand that the money be put back, either before or after Samuel’s death.

IV. Conclusion [ 32 ] Under s. 47(2) of the Act , Pamela is entitled to the $521.68 that was in the account at the time of Samuel’s death. After Samuel’s death, Réjean held $91,492.83 in a constructive trust for Samuel’s estate. This amount has to be distributed in accordance with the Devolution of Estates Act . I would order that this amount, after any debts are repaid and taxes paid, be distributed as follows: one third to Pamela and two thirds to the children.

The evidence shows that further sums were deposited into the account after Samuel’s death, namely interest and one $250 payment from the Department of Veterans Affairs. I order that these additional funds be distributed in a proportion of one third to Pamela and two thirds to the children. This Court maintains jurisdiction to determine any issue relating to the distribution of the money as directed in this decision. [ 33 ] Under the circumstances, no costs are awarded. _______________________________ B. Richard Bell, j.c.a.

NOUS SOUSCRIVONS À L’AVIS. _______________________________ Alexandre Deschênes, j.c.a. _______________________________ Kathleen A. Quigg, j.c.a.