Docket: 1966 James Anthony Figley, Knighton Van Bryce, Stanley Ray Figley, Ronald Ira Figley, v. Bonny Gayle Marie Rossler, 2012 SKCA 36

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 36 Date: 20120319 Between: Docket: 1966 James Anthony Figley, Knighton Van Bryce, Stanley Ray Figley, Ronald Ira Figley, and Bonny Gayle Marie Rossler Appellants (Applicants) - and - Eugene Walter Figley, personally and as executor of the estate of Raymond Kenneth Figley, deceased, and the estate of Mervin Dale Figley, deceased, and as trustee-director of Figley Farms Ltd. Respondent (Respondent) Coram: Lane, Richards and Herauf JJ.A. Counsel: Robert Stevenson for the Appellants Eugene Figley appearing on his own behalf

Appeal: From: Q.B.S. No. 621 of 2007, J.C. Saskatoon and Q.B.G. No. 383 of 2010, J.C. Saskatoon Heard: October 25, 2011 Disposition: Appeal allowed in part Written Reasons: March 19, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Herauf Richards J.A. I. Introduction [ 1 ] This appeal is rooted in family conflict. The conflict features Eugene Figley, the respondent, on one side and five of his siblings, the appellants, on the other.

Their disagreements flow largely from the terms of their late father’s will and from Gene’s actions as executor of their father’s estate. But, as explained below, there are other difficulties as well. [ 2 ] In April of 2010, the appellants commenced proceedings by way of originating notice and asked the Court of Queen’s Bench, most centrally, to remove Gene from the position of executor. They sought, among other things, to have the court appoint the Public Guardian and Trustee (the “Public Trustee”) to (

a) administer the estate of their father, (

b) serve as a trustee of Figley Farms Ltd. (the father’s farming company), and (

c) act as a litigation guardian for their father’s estate in relation to several ongoing court proceedings concerning the validity of their father’s will and other matters. In general terms, the appellants alleged various kinds of improper actions and motivations on Gene’s part. [ 3 ] The Chambers judge dismissed the application. The appellants say he erred in his assessment of the situation and ask that his decision be reversed. [ 4 ] I conclude, for the reasons set out below, that the appeal should be allowed in part.

Gene must be removed from his position as executor and the Public Trustee appointed to administer the estate. II. Background [ 5 ] The full details of the factual underpinnings of this case are quite involved. I propose only to broadly sketch as much of them as is necessary to explain the appellants’ arguments and my conclusions. [ 6 ] Raymond Figley (the “Father”) farmed in the White Bear district of Saskatchewan.

He and his wife Evelyn Figley (the “Mother”) had eight children: Jim, Knighton, Merv, Stan, Ron, Gene, Rod and Bonny. (In order to simplify matters, I will refer to these individuals by their first names throughout these reasons.) [ 7 ] The farm grew to some four sections in size by 1969. At that time, Figley Farms Ltd. was incorporated and the farming assets were transferred to it. [ 8 ] One of the children, Merv, was injured in an accident in 1971 and lived in care homes in Saskatoon thereafter.

The Father moved to Saskatoon to be near him and never returned to live on the farm. [ 9 ] Ron and Stan remained on the farm and did the necessary farm work. The Mother and the Father separated in 1974.

[ 10 ] Ron and Stan say the Father orally agreed in the fall of 1980 that, in return for their work and services, Figley Farms Ltd. would be theirs when he died. They stayed on the farm and operated it until the Father’s death. Their farming efforts included significant work and expenditures on improvements, equipment and so forth. They say there was a “crop share” arrangement between them and Figley Farms Ltd. [ 11 ] In 1997, the Father pressured Ron and Stan to sign written purchase agreements for the land on threat of selling it out from under them.

Ron refused to do this but Stan agreed to purchase six quarters of land from Figley Farms Ltd. None of the farm land was transferred to Ron or Stan during the Father’s lifetime. Ron says he believed that his father would ultimately “do the right thing.” [ 12 ] Merv died in 2006. The Father was apparently greatly affected by this. Merv’s will named Gene as the sole executor of his estate.

At about the same time, the Father appointed Gene as his trustee pursuant to a power of attorney. [ 13 ] The Father died in October of 2007 and the appellants say that, during the last months of the Father’s life, Gene worked to alienate him from them and to alienate them from each other. [ 14 ] The Father’s will, made on September 17, 2007, appointed Gene as sole executor and trustee. The will also directed Gene to vote the Father’s shares in Figley Farms Ltd. so that he would become the sole director of the company. The will did not transfer the farm land to Ron and Stan as they had expected.

Rather, in simplest terms, it provided that: (

i) all amounts owing by Stan’s company under the 1997 agreement to purchase land from Figley Farms Ltd. would be forgiven and the lands transferred to Stan’s company, (ii) Stan’s share of the residual legacy would be reduced by the combined total of the amount owing by Stan’s company under the agreement and $60,000 (representing the supposed value of some surface leases and easements), (iii) Ron would receive the lesser of the monies paid by him in “rent” from 1993 to 2007 and his share of the residue, (iv) all remaining farming assets would be sold, and (

v) Ron’s bequest would be further reduced by some roughly $37,000 (representing the value of a truck). A codicil executed on September 21, 2007 provided that all of the Figley Farms Ltd. lands had to be sold as a single parcel. [ 15 ] The Mother died in March of 2009 without a will. [ 16 ] Gene took various courses of action, described more fully below, which created some extremely hard feelings between him and his siblings. [ 17 ] Four pieces of litigation have flowed out of the circumstances described above: (

a) Q.B. No. 797/2007 – a proceeding commenced by Gene, acting as executor of Merv’s estate, for a declaration that, at the time of his death, Merv was the sole owner of a small gift shop in the facility where he lived and for an order directing that some $6,100 held by a bank for the shop be released to Merv’s estate. (

b) Q.B. No. 621/2007 – an application by Ron alleging the Father lacked testamentary capacity and was under undue influence when he made his will and asking that (

i) the will be proven in solemn form, and (ii) Gene make an accounting in relation to actions under his power of attorney for the Father and of all legal fees and disbursements. (

c) Q.B. No. 1435/2009 – an action commenced by Gene, in the name Figley Farms Ltd., asking that Jim be ordered to pay some $66,000, the balance said to be owing on a promissory note. (

d) Q.B. No. 90/2010 – an action commenced by Ron, Stan, Stan’s company, Bonny and Jim asking, most centrally, that (

i) an order be made for the specific performance of the farming agreement said to have existed between the Father and Stan and Ron, (ii) the Father’s will be set aside on the basis that the Father was of unsound mind when he made it, (iii) Gene be removed as executor of the Father’s estate, (iv) Gene account for his actions as administer of the Father’s estate, (

v) Gene be discharged from his position with Figley Farms Ltd., and (vi) Gene be ordered to pay substantial damages. [ 18 ] In March of 2008, Dovell J. granted a consent order in relation to Q.B. No. 621/2007 which provided, most significantly, that:

(

a) Gene be required to prove the Father’s will in solemn form with the trial to consider both undue influence and testamentary capacity. (

b) Gene make a full accounting of his actions as power of attorney from the date of his appointment to the date of the Father’s death. (

c) Gene make a full accounting of all legal fees paid and be restrained from making further payments until further order of the court. (

d) Gene be restrained from the dissipation of any of the assets of Figley Farms Ltd. or the Father’s estate until further order of the court. (

e) The status quo be maintained with respect to the farm assets and farm land until further order of the court. [ 19 ] Q.B. No. 621/2007 was back before the Court of Queen’s Bench, in July of 2008, this time before Mills J. He, in effect, clarified Dovell J.’s order as it related to Gene’s expenditure powers as executor by providing that: 1. Eugene Figley is authorized to continue utilization of the estate accounts in accordance with the banking agreements currently in place; 2. No payment is to be made directly to Eugene Figley personally or in his capacity as the executor of the estate for services rendered; 3.

No payment is to be made to counsel for Eugene Figley personally or to counsel for the estate for services rendered; and 4.

Within seven days of writing any cheque or withdrawing any funds from the estate account, notification shall be given to the solicitor for Ronald Figley of the use of the account, which will include the date of access to the account, the amount of the cheque or withdrawal from the account, the purpose of the utilization of the funds and the name of the person to whom the funds were paid. [ 20 ] In response to various concerns raised by Ron about Gene’s actions, Mills J. refused to find Gene in contempt of Dovell J.’s order but commented that, if there were concerns about Gene’s actions as executor, an application should be made to remove him from that position: [8] The situation where the parties do not trust each other nor do they get along on any matter relating to the estate does not mean that the Court will step in on every perceived wrongdoing, no matter how minor.

If the respondent is not fit to act as the executor of the estate as a result of his conduct, then the application should be to remove him, not to deal with petty matters of management on an ongoing basis. III. The Decision Under Appeal [ 21 ] The disputes among the Figleys were before the Court of Queen’s Bench again in May of 2010. [ 22 ] First, the Chambers judge dealt with an application on Q.B. No. 621/2007, by Gene, seeking an accounting from Ron for the 2008 and 2009 crop years.

The order was granted. [ 23 ] Second, the Chambers judge considered an application by Gene for possession of the land farmed by Ron and Stan or, alternatively, for an order requiring the payment of rent by Ron and Stan. This request was denied because the record did not suggest an appropriate rental rate and because the consent order issued by Dovell J. had contemplated continued possession of the land by Ron and Stan. [ 24 ] The Chambers judge also dealt with Q.B. No. 383/2010 – the proceeding directly underpinning this appeal. It was an originating notice asking, most significantly, for an order that: (

a) Gene be removed as executor of the Father’s estate, the executor of Merv’s estate and as “trustee-director” of Figley Farms Ltd.

(

b) The Public Trustee be appointed to administer the estates of the Father, Merv and the Mother and, as well, to act as litigationguardian with respect to their interests in Q.B. No. 621/2007, Q.B. No. 797/2007, Q.B. No. 90/2010 and Q.B. No. 1435/2009. [25] The Public Trustee agreed to administer the Father’s estate if necessary but expressed significant reservations about taking onanything more. [26] The appellants’ application was accompanied by numerous affidavits.

Relief was sought on the basis of allegations that Gene wasacting in such a way as to endanger the property held in the estate and was wrongly attempting to interfere with the farming operations ofRon and Stan. It was also alleged that Gene had failed to carry out his responsibilities, shown a lack of proper capacity to execute hisduties and failed to act with reasonable fidelity and reliability.

The Chambers judge summarized the particulars of these complaints asfollows: [11] Ronald and Stan Figley point to the following activity by Eugene as grounds for removal as executor: 1) he alienated his fathertowards the other children, 2) he practised secrecy with respect to a power of attorney granted to him by the father, 3) he failed to accounton the power of attorney granted to him by his father, 4) he continued the secrecy after the death by not disclosing the existence of thewill in representations to his brother Stan, 5) he has taken money from the estate for fees contrary to the order I had previously made, 6)he has destroyed documents relating to the estate, 7) he failed to produce the will of Mervin and Raymond’s estate. [27] In the end, and as already noted, the Chambers judge concluded that the application should be dismissed.

In his view, there was noreal evidence that the estate was not being properly administered. He also expressed concerns about the cost involved in having thePublic Trustee to administer the estate. The Chambers judge explained his thinking in this way: [12] Of considerable concern to me is the allegation that Eugene is taking money for executor’s fees contrary to my previous ordermade. Given the material now filed I am satisfied this is not occurring.

All of the other complaints that have been raised while valid onan emotional basis as it relates to the relationship between the siblings provide little support for an application to remove him as executorof the estate. Eugene has been administering the estate in accordance with previous orders made by this Court. The simple fact ofdislike and distrust is not a ground for removal of him as executor. Any executor appointed will eventually have to provide anaccounting for their activities in relation to the estate.

There is one allegation, but no real evidence that the estate is not beingadministered appropriately by Eugene Figley at this time. [13] A secondary concern relates to the cost of administration of the estate by appointing of the Public Trustee. Significant resourcesin relation to the estate have already been expended and the Public Trustee’s fees will further erode funds otherwise payable to thebeneficiaries. The application is dismissed. IV.

Analysis [28] In this Court, counsel for the appellants argued that the Chambers judge had not properly appreciated the significance of Gene’sactions or come to terms with the detail of the evidence before him. He advanced three main lines of argument and, in so doing, I expectmay have advanced his clients’ position in a more nuanced and persuasive way than he had done before the Chambers judge. The firstinvolved what are said to be Gene’s significant and disqualifying conflicts of interest. The second concerned alleged misconduct andlack of fidelity on Gene’s part.

The third was a contention that, at a minimum, the Chambers judge should have directed the trial of anissue so as to put all of the facts relevant to Gene’s possible removal and replacement before the court for consideration. [29] After briefly outlining the legal framework in which the central issues raised by this appeal must be resolved, I will examine each ofthese arguments in turn. A. The Governing Legal Principles [30] The appellants grounded their originating notice on s. 85 of The Trustee Act, R.S.S. 1978, c. T-23 and the inherent jurisdiction ofthe Court of Queen’s Bench.

I note, however, that The Trustee Act has been repealed and replaced by The Trustee Act, 2009, S.S. 2009,c. T-23.01.

Part IV of this new Act deals with the “Appointment and Removal of Trustees” but s. 14 thereof specifically provides that“[t]his Part does not apply to the appointment and removal of executors or administrators.” [31] But, in the end, none of this is fatal to the appellants. It has been repeatedly held that the Court of Queen’s Bench has an inherentjurisdiction to remove executors. See, for example: Ocean Man Trust, Re (1993), (SK CA), 113 Sask. R. 179(C.A.). This seems to be the proper jurisdictional basis from which to approach the appellants’ application.

[32] The leading case with respect to the removal of executors is Letterstedt v. Broers (1884), 9 A.C. 371 (P.C.). There, Lord Blackburnreferred with approval, at pp. 385-86, to a passage from Story’s Equity Jurisprudence: Story says, s. 1289, “But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees whohave abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts ofEquity to adopt such a course.

But, the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, ora want of proper capacity to execute the duties, or a want of reasonable fidelity.” It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicatedby Story is merely ancillary to its principal duty, to see that the trusts are properly executed ... It must always be borne in mind thattrustees exist for the benefit of those to whom the creator of the trust has given the trust estate ...

In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyondthe very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to laydown any more definite rule in a matter so essentially dependent on details often of great nicety. But they proceed to look carefully intothe circumstances of the case. [emphasis added] [33] This general approach appears to have been consistently applied by the courts of this Province and elsewhere.

See, for example: Watson Estate, Re (1997), (SK KB), 159 Sask. R. 275 (Q.B.) at paras. 9-11; Matiko v. Matiko Estate, 2002 SKQB273; Mitchell Estate, Re, 2006 SKQB 267, 280 Sask. R. 151. B. Conflicts of Interest [34] In arguing that the Chambers judge failed to appreciate Gene’s conflicts of interest, counsel for the appellants began byemphasizing that the Father’s will names Gene as sole executor and also includes him as a beneficiary of the residue of his estate. This,indeed, is how the will is constructed.

Clause 2.1 appoints Gene as “the Executor and Trustee of this my Will” and, under clause 3.5.1,Gene is entitled to share equally in the residue of the estate along with Stan, Ron and Rod. But, this sort of arrangement is not in anyway unusual. Beneficiaries are regularly appointed as the executors of estates and such appointments, in and of themselves, do notinvolve disqualifying conflicts of interest. There must, as indicated by Letterstedt v.

Broers, be something more. [35] The appellants endeavour to put meat on the bones of their conflict of interest argument by pointing to evidence in the affidavits ofRon and Stan that there had been an agreement between the Father and Ron and Stan concerning the transfer of farm land and indicatingthat the payments made by Ron and Stan to the Father were not in the nature of “rent” but were in the nature of payments for thepurchase of the land. Be this as it may, I see no conflict of interest here for Gene. As executor, Gene is obliged to take the will as hefinds it.

The question of whether the farm land is, or is not, part of the Father’s estate is the subject of Q.B. No. 90/2010 and will beresolved in the course of that litigation. It is not clear to me how Gene can, or should, presume the outcome of the proceedings on thissubject. [36] The appellants also point to some of Gene’s actions in relation to Ron’s and Stan’s farming operations.

Specifically in this regard,they refer to an application brought by Gene to evict Ron from the land, the application to Mills J. made in an effort to collect rent andthe taking of grain from the farm and the damaging of a door on a grain bin. The materials provide very little detail with respect to thesematters and, for my part, they do not make sufficiently clear how all or any of the actions complained of amount to a disqualifyingconflict of interest on the part of Gene in his capacity as executor. [37] It may be worth pausing here to underscore a point.

One of the root sources of the bad feelings concerning the administration ofthe estate is that the Father’s will does not take account of what Ron and Stan, in particular, say was an agreement between them and theFather concerning the transfer of the farm land.

This is important because it means the steps taken by Gene which are consistent withthe terms of the will are difficult to characterize as constituting a conflict of interest simply because they have negative implications forRon and Stan. [38] Thus, at the end of the day, the heart of what the appellants characterize as a conflict of interest really amounts to not much morethan Gene’s refusal to respect the alleged agreement among Ron, Stan and the Father – an agreement which is not reflected in the termsof the will.

Simply put, Gene is not in a disqualifying conflict of interest in relation to the administration of the will merely because heproceeds on the basis of the will as it is drafted. He is under no obligation, as executor, to act in Ron and Stan’s best interests if thosebest interests are defined by reference to a farming agreement not recognized in the will.

[ 39 ] Parenthetically on this point, I should note here an apparent concern on the part of the appellants that their lack of success before the Chambers judge will somehow work to prejudice Ron’s and Stan’s arguments in Q.B. No. 90/2010 with respect to the agreement they say was in place with the Father. For my part, I am unable to see a basis for any such concern. The Chambers judge was not asked to decide whether there had been an agreement and he made no finding of any sort on this question. As a result, the appellants need not have any worries on this front.

The existence and impact of the alleged agreement remains unresolved. [ 40 ] The appellants also cite Q.B. No. 797/2007 (concerning Merv’s gift shop) and Q.B. No. 1435/2009 (concerning monies said to be owing by Jim to Figley Farms Ltd.) as demonstrating a conflict of interest on Gene’s part. Both cases were commenced by Gene – the former in his capacity as executor of Merv’s estate; the latter through his authority as the sole director of Figley Farms Ltd. However, at least on the basis of the materials filed, I am not persuaded that the two cases reveal a conflict of interest. Q.B.

No. 797/2007 has no direct connection to the administration of the Father’s estate. As for Q.B. No. 1435/2009, it might have created hard feelings between Jim and Gene by causing Figley Farms Ltd. to recover amounts allegedly owing to it but that does not put Gene’s personal interests out of line with his responsibilities as executor. Importantly, clause 3.4.2(

d) of the will specifically directs the Father’s trustee to ensure that amounts owing under the promissory note given by Jim are paid. [ 41 ] Finally, and more generally, the appellants point to the extraordinarily difficult personal relations between them and Gene as creating or representing a conflict of interest. I do not propose here to map out the full detail of their concerns on this front because, in my view, this aspect of the appellants’ case is most usefully characterized, not as involving a conflict of interest, but as involving a lack of good faith and fidelity on Gene’s part.

It is to this issue which I now turn. C. Good Faith and Fidelity [ 42 ] Counsel for the appellants’ second line of argument is that Gene has engaged in conduct, and revealed an agenda, which warrant his removal from the position of executor. It is on this point, in my opinion, that the appellants are entitled to succeed. A careful review of the affidavit materials before the Court establishes that Gene lacks the good faith and fidelity required of a trustee. The most significant considerations in this regard are summarized below: (

a) Several of the appellants depose to the fact of Gene’s intense ill feelings towards his family and describe a history of unwarranted outbursts of anger on Gene’s part. Indeed, some of this behaviour is reflected in Gene’s own words in the emails exhibited to Bonny’s affidavit. These problems are said to have typified Gene’s behaviour since he was a teenager. Stan and Ron both recount an incident involving Gene’s threatened use of a gun which led the Father to demand that Gene leave the farm. (

b) Dory Simon, the friend and caregiver of the Father, also describes several incidents when Gene erupted in irrational anger. One, for example, was when Ms. Simon went with the Father to buy a special needs chair so the Father could sleep safely but, in making the purchase, did not “shop around for a good deal.” She also details unusual behaviour on Gene’s

part including the fact that he stopped payment on a $7,000 cheque the Father gave her for the round-the-clock care services she provided while on an unpaid leave from her job. Gene then went on to falsely tell Ron the cheque had been for $180,000. (

c) Knighton deposes that, leading up to the Father’s death, Gene was “running down” every member of the family and saying they had taken money from the Father or had outright stolen money from the Father and Figley Farms Ltd. (

d) In 2007, Gene (claiming to be acting on the Father’s instructions) spread soil sterilant on the lawn around Ron’s house, killing grass and causing health problems for Ron. (

e) Jim says that, on at least five separate occasions in September of 2007, Gene told him that he was going “to screw Ron” and that the day before the Father died, Gene had said “I am going to fuck Ron over.” (

f) Gene did not advise his siblings when the Father became gravely ill and they did not have a chance to be at the Father’s bedside or to be with him when he died. (

g) When the Father died, Gene took complete control of the funeral arrangements, a step his siblings found very disturbing.

(

h) Gene moved with curious speed to secure the sole directorship of Figley Farms Ltd. Ron states that Gene managed to accomplish this within a few hours of the time of the Father’s death. (

i) Between the time of the Father’s death and the funeral, Gene (it was discovered later) travelled to Calgary to make inquiries about liquidating Figley Farms Ltd. (

j) At the Father’s funeral, Gene was drinking and said “his ship had come in.” He refused to show the will to his siblings. They were later able to obtain a copy of it only when Ron approached the trust company which, for a time, had administered the estate. (

k) Shortly after the funeral, Knighton (who lives in Calgary) was telephoned by Gene who said he was in that city to arrange for a quick sale of the farm. Knighton indicates he was astonished to hear this given Ron and Stan’s long-term relationship with the farm. Gene told Knighton that Ron and Stan had been “stealing the farm blind” and that he was going to “get them.” When Knighton asked to see the Father’s will, Gene said “If you know what’s good for you, stay out of this. It’s going to be an ugly fight.” (

l) At the time of the same visit, Gene told Knighton that he was going through the Father’s records, had already worn out one shredder and had “38 boxes of materials to go.” (Such records, one might think, would contain material relevant to the farming relationship between Ron, Stan and the Father.) Gene told Knighton that if he found even one cheque from the Father to Knighton, he would be coming after Knighton to collect. (

m) On October 20, 2007, Gene visited Stan and his wife at their home. He told them that he expected trouble from Ron and Jim but that he would “look after the problem.” Stan and his wife were not shown a copy of the will but, rather, were told that Stan was “well looked after in the will,” would not be required to make any further land payments and would receive his share of the farm land. Gene took the extraordinary step of having them sign a document indicating (

i) they were not involved in any kind of legal action against Gene or the Father’s estate, (ii) they had not signed any agreements with any of their siblings to bring legal actions against Gene, and (iii) they were not involved with Ron or Jim or any of the other siblings in any conflicts with Gene. Stan says he was “shocked” when he saw the will some five months later. (

n) On November 13, 2007, Gene published a notice to creditors in respect of the Father’s estate in the Saskatoon StarPhoenix . It indicated that creditors had to file claims against the estate by December 13, 2007.

Gene provided no direct or personal notice of this development to Ron and Stan, both of whom he obviously knew would have had major claims to advance against the estate if they had known the terms of the will. [ 43 ] Gene does not deny or contest any of these accounts of his behaviour other than to depose he did not say that he was going to “screw Ron.” He also says, in very general terms, that he did not attempt to isolate the Father and that he did not act rudely to caregivers. [ 44 ] The appellants suggest, and I agree, that there is also something to be learned from an examination of Gene’s actions in relation to Merv’s estate.

With respect to the administration of that estate, they say Gene never showed the will to the family, never submitted it to probate and never paid anything out to the Mother who was the sole beneficiary. This took place in a context where, according to Jim, Merv received a lump sum payment of $21,000 from SGI a few months before his death. Jim also says Gene took $3,900 in cash from Merv’s room at the time of Merv’s death. Monty Goddard, a resident of the home where Merv lived, appears to indicate in his affidavit that there was an additional $4,900 in cash in Merv’s room as well.

When Merv died, Gene immediately attempted to empty the “Wheelies Gift Shop” bank account but Mr. Goddard says Merv never considered the Wheelies’ bank account to be a personal account. Mr. Goddard also says Gene abused him verbally and threatened to charge him with fraud when he raised questions in this regard.

In response to all of this, Gene does no more than generally deny “any mismanagement” of Merv’s estate, say Merv died with little and add that “the money in the bank account was used for funeral expenses.” [ 45 ] There is another factual consideration which also strikes me as being really quite significant. Gene was required, by orders of Dovell J. in March of 2008 and Mills J. in July of 2008, to provide an accounting in respect of his actions under the Father’s power of attorney from the date of his appointment until the Father’s death. No such accounting has been provided.

This is a troubling failure on Gene’s part because the accounting concerns the very assets which comprise the estate he is charged with administering. [ 46 ] The authorities indicate that a court should not act too readily to remove an executor. As Wimmer J. said in Surminsky (Litigation Guardian of) v. Ulmer Estate , 2000 SKQB 209 , “To override a testator’s choice of an executor is a sensitive exercise not to be lightly undertaken.” See also: Mitchell Estate, Re , supra at para. 10 . As well, the cases suggest the mere fact of conflict or bad personal

relations between a beneficiary and a trustee is normally not enough to warrant the removal of a trustee. See, for example: Watson Estate, Re , supra at para. 12 . [ 47 ] However, this appeal involves a situation where the relationships between the executor and the beneficiaries go well beyond mere hard feelings. As indicated above, the affidavits reveal an active intention on Gene’s part to “punish” his siblings, particularly Ron and Stan.

It is difficult to understand how he will be able to fairly and even-handedly administer the estate when he starts from this highly partisan point of approach. [ 48 ] These concerns are especially acute with respect to the farm land and the relations between Figley Farms Ltd., on the one hand, and Ron and Stan on the other. Ron and Stan’s combined operations are not small and, as of necessity, they must involve ongoing arrangements in relation to equipment, “rent” and so forth with Figley Farms Ltd.

Yet, all of this must play out in a context where Gene says he is going to “get” Ron and Stan, where he has destroyed records and where he has pursued an agenda of dealing quickly and quietly with the land held by Figley Farms Ltd. before his siblings even knew what was in the Father’s will. [ 49 ] In the end, and on the unusual facts revealed in the affidavits, the appellants have demonstrated, on Gene’s part, “a want of proper capacity to execute the duties, or a want of reasonable fidelity” as per Letterstedt v. Broers, supra .

As a result, he should be removed as the executor of the Father’s estate and replaced, as requested, by the Public Trustee. (All of the appellants say they understand the cost to the estate of the Public Trustee acting as executor and are fully prepared to have the estate assume the cost.) On being appointed, the Public Trustee will obviously wish to vote the estate’s shares in Figley Farms Ltd. and take such other actions as are necessary to assume management and control of the company. The Public Trustee will then, among other things, be in a position to direct Q.B.

No. 1435/2009, the claim advanced by Figley Farms Ltd. against Jim. [ 50 ] Granting the rest of the order sought by the appellants is more problematic and, in my assessment, not appropriate or necessary at this time. [ 51 ] In this regard, let me deal first with the request that the Public Trustee be appointed to administer Merv’s estate. My concern here is that, at this point, there does not appear to be much estate to administer.

Further, the Public Trustee expresses concern about being appointed to administer an estate which is so small and asks that no appointment be made unless costs are payable out of the Father’s estate. In the end, it seems to me that a better step at this late stage of the game might be to order an accounting, on Gene’s part, with respect to how he handled the assets in Merv’s estate. This was not any part of the relief sought by the appellants nor something to which Gene has had an opportunity to respond.

Nonetheless, on the surface of things, it seems a sensible course of action – more sensible than drawing the Public Trustee into the administration of the small estate which, except for a disputed bank account, has in all probability been dissipated. Thus, without in any way attempting to pre-determine the result of an application by the appellants for an accounting, I decline to make the order they seek in relation to Merv’s estate. [ 52 ] Second, turning to the Mother’s estate, it is my understanding that an executor (not Gene) is in place.

There is too little information in the record to warrant an order displacing that individual and appointing the Public Trustee to administer her estate. [ 53 ] The third and final issue to be resolved as to the relief sought by the appellants concerns the request that the Public Trustee be appointed to act as litigation guardian with respect to the interests of the estates in Q.B. No. 1435/2009, Q.B. No. 797/2007, Q.B. No. 90/2010 and Q.B. No. 621/2007. I am not inclined to make such orders at this time. As to Q.B.

No. 1435/2009, the appointment of the Public Trustee to administer the Father’s estate will mean Gene is no longer in charge of the case on behalf of Figley Farms Ltd. [ 54 ] In Q.B. No. 797/2007, the claim is for only $6,100 and is being pursued by Gene in his capacity as executor of Merv’s estate. In light of my decision declining to replace Gene as executor of the estate, there is no present reason to insert the Public Trustee into that litigation. [ 55 ] With respect to Q.B.

No. 90/2010, the Father’s estate is a party to the case and, by virtue of being appointed administrator of the estate, the Public Trustee is now necessarily involved. It seems to me the Public Trustee should be left to decide how best to proceed and to make such applications, if any, as might be needed to move ahead in a proper manner. [ 56 ] As for Q.B. No. 621/2007, Gene has been charged with proving the Father’s will in solemn form. It is not apparent to me, on the basis of the materials and argument presented to this Court, why he cannot continue in this role.

Nonetheless, I acknowledge that there might be considerations here which were not raised by counsel and I would not, by these reasons, wish to be taken as having decided that the Court of Queen’s Bench cannot address this question afresh, or make supplementary or related orders, should that prove necessary or appropriate.

[ 57 ] All of this said, the appellants and Gene need to either settle their differences or conclude the litigation they have initiated. The Father died well over four years ago and the clock is running. All members of the family must move forward if they are to escape the legal net which presently ensnares them. They would be well advised to do this with focus and as co-operatively as is possible in the circumstances. D.

Trial of an Issue [ 58 ] Counsel for the appellants also contends that the Chambers judge should have ordered the trial of an issue so as to put all of the facts relating to Gene’s alleged inadequacies and misdeeds fully before the court. It is not clear whether such a request was made expressly to the Chambers judge but in view of my conclusions as outlined above, it is not necessary to give any consideration to this issue. V. Conclusion [ 59 ] This appeal is allowed in part.

There will be an order removing Gene as executor of the Father’s estate and appointing the Public Trustee to act as administrator of the estate. [ 60 ] The difficulties giving rise to this appeal are directly linked to the Father’s failure, inability or lack of capacity to foresee the problems which would arise if Gene was appointed as executor of his estate. As a result, and in view of what I understand to be the limited nature of Gene’s financial resources, the appellants are entitled to have their reasonable solicitor and client costs relating to this appeal paid from the estate.

DATED at the City of Regina, in the Province of Saskatchewan, this 19th day of March, A.D. 2012. ____________________________________ Richards J.A. I concur ____________________________________ Lane J.A. I concur ____________________________________ Herauf J.A.