Bachmann Estate (Re), 2024 BCSC 24

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bachmann Estate (Re), 2024 BCSC 24 Date: 20240108 Docket: P052706 Registry: Vancouver In the Matter of The Estate of Sacha Godfrey Bachmann, Deceased Before: Master Robertson (As Registrar) Reasons for Decision Counsel for Marguerite Bachmann, Administratrix: R. Wu Counsel for Erin Delaney, in her capacity as Guardian Ad Litem to Madison Delaney, Beneficiary: T. Fitzpatrick Place and Date of Hearing: Vancouver, B.C. November 6 and 7, 2023 Place and Date of Judgment: Vancouver, B.C.

January 8, 2024 Table of Contents Overview of the Estate .. 4 The Accounts .. 7 Legal Framework .. 9 Issues .. 12 Analysis .. 13 The Dog . 13 Interest Incurred by Administratrix . 15 Taxes, accountant, and Penalties for Late Tax Filing . 16 Duplication in Legal Costs . 17 General Accounting Matters . 19 Pre-Taking of Fee/Administratrix’ remuneration .. 21 Costs for Passing the Accounts . 25 Conclusion and Orders .. 25 [ 1 ] This is a hearing for the passing of the accounts as set out in the Statement of Account Affidavit #1 made on September 1, 2017 as amended by Affidavit #4 made July 17, 2018 (the “Accounts”) of Marguerite Bachmann (the “Administratrix”), in her capacity as Administratrix of the estate (the “Estate”) of Sacha Godfrey Bachmann (the “Deceased”). [ 2 ] The passing of the Accounts as presented is opposed by the two children of the Deceased (the “Children”), who were aged just under 2 years old, and approximately 3 months old at the time of the deceased’s passing.

The older child has recently attained the age of majority. The younger child is represented at this hearing by her mother as guardian. The older child filed a response to the passing of the Accounts that mirrors the response of the younger child, as advanced by her mother. As such, although the older child did not technically appear, I will refer to the arguments advanced as being those of the Children collectively. [ 3 ] The basis of the opposition to the Accounts is that they are, generally, excessive with some specific items being identified as

being unnecessary, unreasonable, or not properly expenses of the Estate. To that end, the Children have filed a Particulars of Errors and Omissions pursuant to R. 18-1(17) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 . [ 4 ] In addition, the Children take issue with the Administratrix’s pre-taking of a 5% administration fee (the “Fee”). [ 5 ] Given the ages of the Children, the public guardian and trustee’s office (the “PG&T”) has been involved with monitoring the Estate.

By letter of January 6, 2022, the PG&T advised that they would be taking no role in the passing of the Accounts, and that they took no position given that the Children’s mother would be acting as their guardian for that purpose. Overview of the Estate [ 6 ] By way of background, the Deceased tragically died September 5, 2005 due to suicide. He died without a will. As a result, the Children are the sole beneficiaries to the Estate. [ 7 ] The Administratrix is the Deceased’s mother. She deposes that she agreed to act as Administratrix because there was no one else willing, or qualified, to do so.

Upon the Administratrix making the application, the Children’s mother opposed it and advanced a claim that she was the Deceased’s spouse. That claim was denied by the Administratrix. [ 8 ] That issue was not resolved until the spring of 2007, when the Children’s mother withdrew her opposition. As a result, letters of administration were not issued until March 21, 2007. [ 9 ] Given the delay in being able to fully deal with the Estate given these issues, the Estate’s main asset, a condominium in Winfield (the “Condo”), could not be dealt with.

As a result, foreclosure proceedings were commenced by the mortgagee, causing the Administratrix to incur costs and expenses, including by way of personal payment of the mortgage arrears, in order to prevent it from being sold in those foreclosure proceedings. [ 10 ] In addition to dealing with the foreclosure, and the standard estate matters, the Administratrix deposes that she dealt with the following specific items, including:

a) liaising with the police regarding cause of death and initial logistical issues that arose in that respect;

b) organizing two funerals, one in West Vancouver where the Deceased had grown up, and one in Winfield where he lived at the time of his death;

c) negotiations with the Children’s mother to obtain a waiver and release of her opposition and claim to be a spouse, which was not formally obtained until August 2008, so that the Estate could be fully administered, along with various ongoing communications and interactions with her, which included answering various inquiries and demands for further information, including in respect of the Accounts;

d) maintaining the Condo and addressing issues including a break-in that required that a police report be made and that a security system be installed to prevent further break-ins while it was vacant;

e) securing the Condo, readying it for sale, engaging a realtor, and ultimately selling it;

f) dealing with the personal property of the Deceased, which were either sold or donated to charities if unable to be sold. The personal property included a Great Dane dog which he owned at the time of his death (the “Dog”). The Administratrix took the Dog home with her and cared for it until its death in April 8, 2008. The expenses for caring for the Dog have been included as an expense of the Estate;

g) dealing with the PG&T including by way of paying an interim distribution to the PG&T’s office to be held in trust for the Children; and

h) filing all final tax returns, which included retaining an accountant to negotiate the tax that was initially determined to be payable by the Estate as capital gains on the Condo, given the delay in its sale and increase in value after the Deceased’s death. [ 11 ] A full chronology of activities undertaken by the Administratrix was put before the court at this hearing outlining the above, and other tasks.

Things were made slightly more complicated by the distance between the Estate’s assets and the Administratrix’ location in the lower mainland, resulting in a number of trips by her to Winfield, BC. [ 12 ] Although not fully detailed, nor relevant other than for context, it appears that the Children’s mother and the Administratrix have had an acrimonious relationship, the result of which is that there is significant distrust between them. [ 13 ] Aside from the issues previously referenced, the Administratrix has accused the Children’s mother of taking various pieces of personal property, including a 1995 Aerostar minivan and big screen TV, from the Condo immediately after the Deceased’s death.

In addition, it is alleged that the Children’s mother cashed a cheque for $300 drawn on the Deceased’s bank account, after his death, for which the Administratrix says she has never accounted. A formal demand was issued for the return of $2,300 to the Estate on February 11, 2009 in respect of these issues, but was never responded to or complied with.

There was also an issue as to whether the Children were biologically the Deceased’s children, for which DNA testing was carried out and, it appears, some conflict arose in terms of the Administratrix’ visiting with the Children. [ 14 ] On February 25, 2009, believing she had completed the administration, the Administratrix paid the sum of $280,000 (the “Interim Distribution”) to the PG&T’s office to be held in trust for the Children as sole beneficiaries until they reached the age of majority.

In the cover letter, the Administratrix set out a rather general statement of receipts and expenses paid which could not have been taken as a full accounting. Despite it being general, and incomplete, it was sufficient to make it evident that amounts had been paid

out already and that further funds were being withheld, in an amount of around $80,000. Specifically, the cover letter included the following statement: The balance of the monies have been reserved to cover the following expenses: Account for Estate’s Income Tax Mr.

MacAulay, lawyer to the Estate Out of pocket expenses, Marguerite Bachmann Out of pocket expenses, Bert Bachmann Administratrix fees and other potential liabilities [ 15 ] Through what I would classify as a combination of ignorance and inadvertence, the Administratrix failed to properly complete matters by, firstly, obtaining a CRA clearance certificate and, secondly, by passing her accounts in advance of the Interim Distribution being made. [ 16 ] Upon being advised by the PG&T’s office of the former the Administratrix retained an accountant to deal with those issues with a clearance certificate being issued January 26, 2012.

As to the latter, although there were earlier comments made by the PG&T’s office of the need to pass accounts, reference to the PG&T bringing a court application to compel her to do so was made in writing on March 21, 2014. Counsel was eventually retained and the application and affidavit in support were initially filed on August 29, 2018. [ 17 ] The further subsequent 5-year delay in having the Accounts ultimately passed was partially explained.

There was some delay due to the COVID pandemic, some in having to retain new counsel, and finally scheduling conflicts with the Children’s counsel upon them indicating that they would be opposing the Accounts’ passing and requesting an adjournment. [ 18 ] However, that does not explain why it took close to 9 years from when the PG&T formally raised the issue of passing the Accounts to bring this matter forward, not to mention the several years prior to that. [ 19 ] During this time period, the older child reached the age of majority and, as such, his one-half entitlement to the Interim Distribution was released to him by the PG&T.

The Accounts [ 20 ] The Accounts as originally filed are summarized as follows: Description Credit Debit Receipts Sale of Condo and Fixtures, with adjustments $396,584.14 Sale of 1986 Nissan 300 ZX $750.00 Sale of various personal property items $954.57 CPP Death Benefit $2,500.00 Proceeds of a Raffle $150.00 Investments – GIC and Interest $23,539.99 Debt to Estate as Recovered $1200.00 Tax Refund $991.35 Refund from BMO Mastercard Insurance $66.21 Sub-Total $426,736.26 Expenses Expenses for the House, including repairing window, appraisals, installing security system, cleaning, lawn maintenance, utilities and property taxes $3,033.58 Real Estate Commission $14,681.00 Payout of Mortgage and Taxes on Sale $17,813.17 Reimbursement to Administratrix of Mortgage Arrears paid to avoid foreclosure (rounded down from $20,890.54) $20,000.00 Funeral Expenses $2,926.77 Accounting Expenses $1,808.80 Taxes paid to CRA $18,370.02 Service Fees for Estate Chequing Account $372.19 Amount paid to Administratrix $32,369.79 Interest claimed for items charged to personal credit cards $7,943.60

Dog Expenses $2,519.68Legal Fees $4,925.35Administrator’s Fee $19,750.00Sub-Total: $146,513.95 Net Estate Value at time P40 was filed There is a nominal unexplaineddiscrepancy in this amount, which isimmaterial for the purposes of thisapplication $280,222.31 [21] The original payment made to the Administratrix in the amount of $32,369.79 as noted in the above

summary was furtherparticularized in the P40 Account Affidavit as follows: Home Expenses in addition to items noted on P40 as D1 to D7, D12,D19 $7,700.47 Home Maintenance $2,323.72Dog Expenses In addition to items noted on P40 as D8 to D11,D13 to D21, D28 to D32 $9,040.82 Legal Expenses $5,622.00Funeral Expenses $8,004.54Backing out of amounts paid to B.

Bachman forFuneral as duplicative of items noted on P40, D33and D38 -$2,926.77 Travel Expenses $2,439.33Accounting Expenses Presumably in addition to items noted on P40 asD40 and D41 $66.70 $32,270.81Discrepancy: $98.98 [22] Based upon the above accounting, $280,000 was paid to the PG&T as the Interim Distribution.

That amount plus accrued interesthas been partially paid out with one-half going to the older child upon him attaining the age of majority, and the other half remaining intrust for the younger child. [23] As things now stand, the Administratrix seeks further recovery of legal accounts that have been paid and were eitherinadvertently omitted from the above P40 Account Affidavit, or have been subsequently incurred. Legal Framework [24] The Administratrix relied on the following general principles applicable to the passing of accounts in estate matters, which werenot disputed by the Children:

a) The Administratrix is entitled to be reimbursed for all out-of-pocket expenses properly and reasonably incurred in the administrationof the estate. The threshold as to what is reasonable is a relatively low one: Reagh Estate (Re), 2021 BCSC 1807 (“Reagh”), at para. 25;Royal Trust Corporation of Canada v. Clarke, (BC CA), at para. 17-19 and 31.

b) The general test has been described as follows: … whether the expense incurred arose out of

an act within the scope of the trusteeship’s duties and powers, whether in the circumstancesit was reasonable, and whether it was something that his duty as trustee required him to do. Re: Vince Insurance Trust, 2016 BCSC 1992, at para. 30

c) The passing of accounts is not a forum in which beneficiaries can embark on a “fishing expedition” looking for evidence of atrustee’s bad faith or ultra vires acts: MacLean v. MacLean, 2009 BCSC 292 (“MacLean”), at para. 48.

d) Each passing of accounts is to be done based upon each estate’s own circumstances “governed by reason and common sense”: MacLean , at para. 62 .

e) The lack of supporting receipts is not necessarily a bar to recovery of an expense. The court may accept evidence by way of sworn affidavit that an expense was incurred, and the amount in that respect: Smith Estate, 2021 BCSC 1753 , at para. 33 . I would add to this, however, that it is the court’s preference that expenses be supported by receipts. In those exceptional circumstances where an expense can be determined to have been reasonably incurred and quantified without such a receipt, the expense must be one that meets the reason and common sense threshold referenced in MacLean .

f) In general, in administering an estate, the representative’s authority is governed by s. 142 of the Wills, Estates and Succession Act , S.B.C. 2009 c. 13 ( WESA ): 142

(1) A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to (

a) a contrary intention appearing in the will of the deceased person, and (

b) this or any other enactment.

(2) A personal representative must exercise authority to (

a) administer and distribute the estate in respect of which the personal representative is appointed, (

b) account to beneficiaries, creditors and others to whom the personal representative has at law a duty to account, and (

c) perform any other duties imposed on the personal representative by the will of the deceased person or by law.

g) Pursuant to R. 25-13(7), if costs are payable under an application to pass accounts or set remuneration, those costs must be assessed as special costs, and may be assessed without an order of the court. The personal representative is generally entitled to be indemnified for the costs of passing the estate: MacLean , at para. 58 ; Reagh at paras. 64 and 65. [ 25 ] As to the Administratrix’ right to renumeration, s. 88 of the Trustee Act , R.S.B.C. 1996, c. 464 applies.

The Administratrix is entitled to a maximum of 5% of the gross aggregate value of, and income earned by, the Estate, plus an annual care and management fee of 0.4% of the average market value of the Estate assets. [ 26 ] The amount of the remuneration is a matter of the court’s discretion, provided that it does not exceed the rates set out in the Trustee Act , having regard to the following considerations:

a) The magnitude of the estate;

b) The care and responsibility involved;

c) The time occupied in the administration;

d) The skill and ability displayed; and

e) The success achieved in the administration. Derco Estate (Re), 2022 BCSC 2393 (“ Derco ”) at para. 25 [ 27 ] Remuneration at the maximum amount of 5% is not allowed as a matter of course. The amount must be appropriate, fair and reasonable in all of the circumstances: Haley (Re), 2017 BCSC 2057 at para. 140 . [ 28 ] In fixing the remuneration it must not be expressed as a percentage of the gross value of the estate, provided it does not exceed the 5% celling: Zadra v.

Cortese 2016 BCSC 390 (“ Zadra ”), at para. 49 ; Derco at para. 26 and In the Matter of the Estate of Nahar Singh Litt, deceased , 2020 BCSC 1921 , at para. 8 . [ 29 ] Ultimately, the amount of remuneration should be “sufficient to encourage persons to take on the difficult and (often) thankless job of administering an estate”: Chevrefils Estate , 2010 BCSC 753 at para 23 . [ 30 ] As to the need to have sufficient evidence to support remuneration, the Children rely on The Estate of Rubin Levene, 2006 MBQB 236 (“ Levene ”), where the court noted at para. 70: [70] A personal representative who wishes to claim compensation should expect that he or she may be required to produce detailed logs of time and services to justify that compensation.

This applies to non-professional executors and administrators as well as professionals, but certainly all the more so to the professional executor who is claiming significant compensation. [ 31 ] Further, the pre-taking of that remuneration is a breach of trust. If an administrator commits such a breach, they may be required to repay to the estate the amount so taken, with interest. Zadra , at para. 49 . [ 32 ] Finally, as argued by the Children, there is a duty to settle the Estate in a timely manner: Dirnberger Estate, 2016 BCSC 439 , at para 13 .

Failing to do so promptly may also affect the remuneration received: Bigras Estate (Re), 2011 BCSC 950 (“ Bigras ”). Issues

[ 33 ] The following issues were raised by the Children:

a) Whether the costs incurred for the Dog are properly recoverable from the Estate;

b) Whether interest claimed to have been paid on the Credit Card purchasers are properly recoverable from the Estate;

c) Whether the penalties and fees incurred as a result of the late filing and payment of taxes are properly recoverable from the Estate;

d) Whether there is an overall adjustment that ought to be made for excessive expenses, or a failure to provide full receipts; and

e) What the consequences are for the Administratrix pre-taking a fee as well as the appropriate remuneration that should be paid given the issues raised.

Analysis The Dog [ 34 ] The following costs for the Dog have been charged to the Estate: District of West Vancouver Licence $40.00 Scooby’s Doo Dog Waste Removal $900.16 Caulfied Veterinary Hospital $4,010.29 Dog Food $3,770.37 Dog Sitting and Care by Third Parties (some of whom appear to be related to the Deceased) $2,839.68 Total $11,560.50 [ 35 ] The Children argue that the Estate should not be responsible for any of the costs of the Dog or, alternatively, that they should only be responsible for the costs for a short transition period only until the Dog could be “re-homed”, which should have been done “immediately”. [ 36 ] On further questioning during submissions as to the timing, it was suggested that if there was not a new home found within a few months, the Dog should have been taken to the SPCA. [ 37 ] The Administratrix relies on s. 142 of WESA in respect of her continued care of the Dog.

She argues that she treated the Dog as the Deceased would have. Her evidence in this respect is as follows: Sacha’s Great Dane dog, Caesar, was his beloved pet. Sacha owned Caesar many years before he met Ms. Delaney [the Children’s mother] and considered Caesar his family member. I believe that Sacha would have been devastated had Caesar been ”rehomed” (as Ms. Delaney suggests) following his death. As his mother and the administratrix of his estate, I knew that Sacha expected me to care for Caesar and, accordingly, I brought Caesar from Winfield BC to my home in West Vancouver to look after him.

I did not charge my time for caring for and day-to-day maintenance for Caesar. However, at times I needed to retain friends and family members to care for Caesar which was less expensive than if I hired professional services. I needed to arrange their help because I am self-employed as a Pilates studio owner where I also teach full time. I also travelled for my business and to and from Winfield to attend to my administratrix duties. [ 38 ] Notwithstanding that the Dog is a living being, it is ultimately property of the Estate.

As such, the consideration is whether or not it was reasonable for the Administratrix to incur costs of maintaining the Dog such that the Estate should be responsible for those expenses. [ 39 ] The Administratrix had a duty to do deal with the Dog in a reasonable manner in accordance with the Deceased’s wishes. The reasonable costs for doing so are a proper Estate expense. [ 40 ] However, that does not resolve the question as to what expenses are in fact reasonable and whether there is a time limit to them.

While the wishes of the Deceased are relevant in determining the reasonableness, that does not necessarily mean that the Estate ought to pay all costs associated with the Dog (or any property for that matter) until it no longer exists. [ 41 ] Generally, there is a reasonable time period within which Estate property must either be sold or realized for the benefit of the Estate, or otherwise disposed. [ 42 ] I note that letters of administration were not issued by the Court until March 21, 2007.

Thereafter, there was the ongoing dispute as to the claims by the Children’s mother that she was a spouse which were not finally resolved until the waiver and release were provided on August 8, 2008. The Dog died prior to that date. [ 43 ] Thus, in the circumstances of this matter, I find it reasonable for the Administratrix to continue to maintain the Dog in accordance with what she believed to be the Deceased’s wishes until it died in April 2008. [ 44 ] However, I agree with the Children that not all expenses that have been charged to the Estate were reasonably and necessarily

incurred. [ 45 ] Specifically, I do not allow the expenses for any dog waste removal (total $900.16) or the dog sitting by family members (listed on the P40 Account Affidavit to obvious related parties in the amount of $965, plus an additional $320 included in

Schedule “A”) as an Estate expense. Interest Incurred by Administratrix [ 46 ] Included as an Estate expense as item D43 of the P40 Account Affidavit is the amount of $7,943.60 as interest “charged on personal credit cards and chequing accounts used to pay Estate expenses”. [ 47 ] In support of these charges, the Administratrix has included the various statements showing interest charged on her credit cards, and an adding up of all interest charges, which comes to an amount similar to, but not equal to the amount being claimed.

It is not clear on the evidence how the amount claimed and paid to the Administratrix was precisely calculated. [ 48 ] In addition, it is evident looking at the statements that the credit card was used for various personal items not related to the Estate. Further, there is insufficient evidence to support that the use of credit for any particular expense of the Estate was necessary, or for what period the use of credit was needed.

The evidence of the Administratrix is that: ….Had I note had to use my personal CIBC Visa and HSBC bank account to pay for estate expenses, I would not have incurred any interest because, in my day-to-day life, I am able to pay my personal expenses in full. In short, “but for” having to use my personal CIBC Visa and HSBC bank account to incur necessary estate expenses, I would have been in a financial position to pay my CIBC Visa and HSBC bank statements off in full and no interest would have been incurred. In my review, I added the interest charged tome on each of the CIBC Visa and HSBC bank statements.

The total interest charged is $2,850.28 …. As indicated, the interest charged on the CIBC Visa and HSBC bank statements does not amount to $7,943 claimed in my statement of account affidavit. I am at a loss to explain this discrepancy, however, I can say that I did not intentionally overcharge the estate or retain funds for my personal gain. At all material times, I acted in good faith and in the best interests of the estate for my grandchildren while carrying out my administratrix duties. [ 49 ] The evidence is insufficient to support a claim for interest.

As such I disallow the interest expense of $7,943.60 as a necessary expense of the Estate.

Taxes, accountant, and Penalties for Late Tax Filing [ 50 ] The items which are specifically disputed by the Children are the payment of the accounting invoice in the amount of $1,120, the payment of $13,854.82 for capital gains taxes on a 2007 reassessment, and the amount of $368.03 which was payable as a result of a 2009 reassessment. [ 51 ] The general argument is that these amounts included penalties and interest that were incurred as a result of the delays in properly filing all tax returns and seeking the clearance certificate.

However, based on the notices of assessments themselves, the charges were made retroactively based upon reassessments being filed. [ 52 ] Specifically, on December 21, 2011:

a) the 2007 reassessment was issued, which resulted in an additional $9,715.42 being payable as a result of the capital gains tax on the increase in the value of the condo (approximately $40,000) from date of death until it was sold in 2007, with retroactive penalties and interest of $4,139.40.

b) The 2009 reassessment was issued by which an additional $610.01 in taxes were payable, with a retroactive penalty and interest charge of $201.52. [ 53 ] The Administratrix promptly paid the amounts noted on the reassessments, once received. [ 54 ] As to the capital gains, the Administratrix retained an accountant to address the re-assessment which resulted in a reduction to the deemed capital gain amount, and thus resulted in a reduced tax amount. [ 55 ] The amounts, including penalties and interest, were necessary and proper expenses to the Estate.

Duplication in Legal Costs [ 56 ] The legal accounts that the Administratrix claims as expenses of the Estate are as follows: Sep 26, 2005 R. Trevor Todd Law Corp. $342.00 Apr 4, 2006 Edward F. MacAulay Law Corp $2,280.00 Jun 16, 2006 Edward F. MacAulay Law Corp $2,433.83 Mar 13, 2007 Edward F. MacAulay Law Corp $3,359.00 Feb 26, 2009 Edward F. MacAulay Law Corp $4,925.35 Oct 31, 2011 Edward F. MacAulay Law Corp $460.25

Oct 18, 2018 Petit and Company $3,556.25 plus Harper Grey (for Passing of Accounts) TBD Total $17,356.68 [ 57 ] I have reviewed the legal accounts which set out the work that was undertaken by the counsel and total of the fees, disbursements and taxes charged for those items. While the amount billed for each time entry is not indicated on all of the invoices, the amounts charged are, on their face, reasonable having regard to standard billable rates and the scope of work described in each invoice.

There is no obvious duplication of any significance that would support that the change in counsel caused the Estate to incur unnecessary or unreasonable legal expense. [ 58 ] Further, the total amount charged given the issues the Estate was faced with including the dispute proceedings filed in Kelowna by the Children’s mother, the parentage of the Children, a pending foreclosure, and an eventual sale of property, all of which are over and above the general administrative activities that counsel would normally perform, is reasonable. [ 59 ] There are, however, entries on the legal accounts that do not appear to be related solely to the Estate matters.

For example, the following likely had a dual purpose as they related to issues as to the status of the Children (which is partially an Estate matter as the DNA issues were relevant to whether they were properly beneficiaries) but also as to the personal issues involving the Administratrix as their grandmother. • May 4, 2006 – Email to client re: answering her concerns about DNA testing. • April 3, 2007 – TF Mr. Herperger re Genetrack Email to Mr. Herperger • May 14, 2007 – Review of Genetrack information re DNA results; TT Mr.

Herpeger • August 1, 2008 – TF client left message; Email to client and voice message re letter to the other side in respect of visitation. [ 60 ] Unfortunately, the invoices do not have either the time spent on each of these items, or billable rate noted, however given the entries each is likely only a 0.2 or 0.3 hour item. [ 61 ] Having reviewed the invoices, in my view it is appropriate to reduce the legal fees claimed by $500 given the dual nature of these entries using a common sense approach to determine the amount of such work as described in those entries. [ 62 ] As to the reimbursement for the costs of these expenses, the Administratrix is seeking to be reimbursed for the sum of $2,840.83 for an unpaid balance on one of the accounts of Edward F.

Macaulay Law Corporation and the amount of $3,556.25 for the Petit and Company invoice both of which were paid by the Administratrix after the Interim Distribution was made, for a total of $6,397.08. General Accounting Matters [ 63 ] The Children raised vague issues and criticisms with various items, such as (the list is not exhaustive):

a) the accounting expenses (total $1,808.80);

b) the travel receipts for travel and meals as being unnecessary or unsupported by receipts for 14 or 15 trips to Winfield. Some of these expenses included meals were with friends and neighbours of the Deceased as a “thank you” for their who assistance with matters relating to the Estate, such as packing of and transportation of belongings from the Condo;

c) general expenses for administration such as shipping, mailing and printing at “Mailboxes etc.” (total $52.39);

d) Walmart expense relating to sundries for the Condo for the Administratrix to stay there while on trips for the purposes of the Estate (total $419), which meant that hotel costs were not incurred;

e) duplication from having two funeral services and flying of pastor from Kelowna to officiate at the Lower Mainland service (total cost: $7,455.90); and

f) cheque service and bank charges (total $372.19) for the Estate’s bank account. [ 64 ] I did not find merit in any of those criticisms and agree with the Administratrix that the concerns were of the type of “fishing expedition” cautioned against in MacLean at para. 48 . [ 65 ] Having regard to the low threshold for establishing reasonableness with respect to expenses of the Estate, based upon an application of reason and common sense as well as the overall objectives of proportionality as enshrined in the Rules of Court, there must be more than a general criticism as to amounts incurred for expenses that appear to be of the type that the Deceased himself would have incurred or wished to have incurred (as noted in s. 142 of WESA ). [ 66 ] I did not find the number of visits to Winfield, the holding of two services and associated costs for travel of the officiant given that mourners were located in two different geographical arears, nor the retaining of an accountant given the capital gains issue to be unreasonable. [ 67 ] While there may be missing or faded receipts for certain expenses there is sufficient evidence, including by virtue of the affidavit filed by the Administratrix, to support that the payments were in fact made and were reasonably incurred by the Estate, except as otherwise commented upon.

[68] As noted in MacLean at paras. 52 to 55, the fact that the written accounting is not perfect, does not comply with the Rules ofCourt, or that there may have been improper dealings does not prevent the court from passing accounts as presented, as long as there issome evidence to support them, in that case the viva voce evidence of the executor. [69] To the extent the handling of receipts and recording of expenses was done in a less than perfect manner, and that there was someduplication as a result of the laxity shown by the Administratrix in complying with her duties to finalize matters, which may haveimpacted the ability of the Children, as beneficiaries, to monitor the Estate’s handling and take positions on this passing of Accounts in atimely manner, that is more properly addressed in setting the appropriate remuneration for the Administratrix.

Pre-Taking of Fee/Administratrix’ remuneration [70] The Children take the position that the pre-taking of remuneration is the type of breach of trust that is deserving of the court’srebuke. In Levene, the court penalized the personal representative by deducting $5,000 from the $30,000 remuneration. In Bruce Estate(Re), 2017 ABQB 67 a $30,000 deduction was made from what would have otherwise been a $700,000 fee. [71] There is an honest and reasonable belief exception set out in the Trustee Act with respect to such breaches of trust: Jurisdiction of court to relieve trustee of breach of trust 96.

If it appears to the court that a trustee, however appointed, is or may be personally liable for a breach of trust, whenever thetransaction alleged to be a breach of trust occurred, but has acted honestly and reasonably, and ought fairly to be excused for the breachof trust and for omitting to obtain the directions of the court in the matter in which the trustee committed the breach, then the court mayrelieve the trustee either wholly or partly from that personal liability. [72] The Administratrix relied upon various decisions where the pre-taking of remuneration was excused by the court, given that itwas done honestly, including:

a) Pretlutsky (Re), (BC SC), [1982] 4 W.W.R. 309at para. 11;

b) Re Newton Trust, 2005 BCSC 1049, at paras. 160 to 161; and

c) de Beerenbrouk Estate, 2017 BCSC 1785, at para 56. [73] I am satisfied that the Administratrix’ pre-taking of her fee was not done with any intention to deceive the Estate, but rather wasthe result of the honest but mistaken belief that she was entitled to do so.

I am aided in this conclusion by the notice given to the PG&T’soffice that she had withheld sums from the Interim Distribution to cover items including her fee. [74] In the circumstances of the Estate, I do not penalize the Administratrix for the pre-taking of her fee. [75] However, the amount of the appropriate fee to have taken must still be considered. [76] There were, as noted, criticisms as to the delay in finalizing the Estate matters, including the passing of these Accounts, as well asthe record keeping itself.

In addition, there were criticisms that it took considerable time for the Children to obtain the supportingreceipts from the Administratrix. I agree. [77] Even accepting that the failings were due to ignorance of the obligations or inadvertence, the need to pass the Accounts wasknown by the Administratrix by at least 2014.

While the receipts appear to have been given over a period of time from 2018 to 2019(although the Children’s mother disputes that she received them all), the 4-year delay prior to that is not reasonably explained, nor is the4-year period since, although some of that recent delay may be due to COVID reasons and scheduling issues between counsel. [78] Regardless, it has taken 18 years for the Estate to be settled.

That is an inordinately long time. [79] In Bigras, a decision relied upon by the Children, the court considered the delay in settling that estate in setting remuneration atonly 2%, noting as follows: [55] Brian Bigras was not required to demonstrate much skill in the administration of the estate. He appears to have ignored ordelayed the necessary income tax filings. He also imprudently co-mingled estate funds with his own monies. After the interimdistribution of the estate funds, communication with the Beneficiaries was poor to non-existent. The accountings presented have beenconfusing and at times erroneous.

The delay in properly accounting to the Beneficiaries (or even making any effort to obtain a writtenwaiver of an accounting) has simply added to potential legal costs to the estate. [56] The executor did succeed in selling the main asset of the estate and make an interim distribution. He also disposed of some ofthe estate assets that were not claimed by other Beneficiaries. However, there was nothing extraordinary in these efforts.

These are tasksthat the executor should be expected to perform in the estate’s administration. [57] It is appreciated that Brian was inexperienced with estate administration and may have taken some of his responsibilities forgranted. However, the onus remains on him to persuade the registrar that a fee in the range sought is warranted. I am not so persuaded. [58] This administration could and should have been completed by 2005 at the latest.

Regrettably, the executor appears to havesimply thrown up his hands hoping that the Beneficiaries would either come up with information about other assets or give up asking foran accounting. There is no reasonable explanation for waiting until the petitioner commenced this proceeding before providing anaccounting.

[59] In the circumstances of this administration, I find that the appropriate total remuneration for all of Brian Bigras’ services as executor is $6,700, or roughly 2% of the gross aggregate value of the estate. There will be no separate income or care and management fee. The fee will be in addition to the reimbursement for expenses that the executor has already withdrawn from the estate (with the exception of the legal fees). [ 80 ] The circumstances of this Estate having regard to the non-exhaustive list of factors for considering in setting remuneration are, in

summary, as follows:

a) The magnitude of the estate: the Estate was not large at under $500,000, being comprised of a Condo sold for $395,500, and modest investment account

b) The care and responsibility involve: the Administratrix had to maintain the Condo, which included dealing with the foreclosure and a break-in, for some time before being in a position to be able to deal with it, given the initial dispute filed by the Children’s mother.

c) The time occupied in the administration: the Administratrix has not kept time records to support the fee as claimed. She has, however, set out in affidavit evidence the work undertaken by her in administering the Estate. I accept that the time spent in administrating the Estate was significant.

d) The skill and ability displayed: unfortunately the Administratrix showed a lack of skill and ability in administering this Estate, as shown by the delay, failure to promptly deal with the filing of taxes, and the pre-taking of her remuneration.

e) The success achieved in the administration: By preventing the foreclosure of the Condo, it was able to be sold at a value which was higher than originally expected, resulting in an increased recovery to the Estate. In addition, the retaining of the accountant to dispute the calculation of the tax on the capital gains as a result of that increase in value resulted in less taxes being payable.

I would describe this administration as successful. [ 81 ] The fee as claimed was calculated as follows: Proceeds of Disposition of capital assets (the Condo) $397,204.57 Market value of capital assets where no proceeds obtained $2,000.00 Total $399,204.57 X 5% $19,960.23 Claimed at $19,750.00 [ 82 ] The Administratrix did not include the GIC of $23,689.99 in calculating her remuneration, or the income earned on the GIC and raffle that she held.

If those items were included, the fee as claimed is closer to 4.5%. [ 83 ] Given the considerable and largely unexplained delay, including the delays in filing tax returns exposing the Estate to penalties and interest, and lack of skill in undertaking some of the activities required of her, the appropriate remuneration is $15,750, for a reduction of $4,000.

While I am fixing this in a lump sum amount, this is roughly equivalent to 3.75% of the value of the Estate’s assets. [ 84 ] This is an amount that is sufficient to encourage persons to take on the role of personal representative which, in this case, was done given that no other person stepped forward, but also reflects the importance of doing so in a timely and accurate manner once such a role is accepted. Costs for Passing the Accounts [ 85 ] When minors are involved in an estate, accounts must be formally approved by the Court.

As such, even had there been consent as to the Accounts, the Administratrix would have had to bring the subject application. [ 86 ] While there have been adjustments made as a result of the opposition raised and there has been some criticism given the delay in finalizing the Estate matters, other than the interest charged which was wholly disallowed, the Accounts have largely been approved with generally modest adjustments. [ 87 ] The Administratrix relied upon the findings of this court in MacLean at paras. 63 to 68 and Zadra at paras. 99-106 , that although there was misconduct, in both of those cases the pre-taking of fees and remuneration, and in the case of MacLean considerable delay in settling that estate, the court is not likely to make an exception to the rule that a personal representative is entitled to be indemnified for costs incurred in passing accounts. [ 88 ] There is no basis to depart from the usual rule by which the costs of passing the Accounts are payable by the Estate as special costs. [ 89 ] As such, the Administratrix is entitled to payment of those costs.

Conclusion and Orders [ 90 ] The Accounts of the Estate are allowed as presented, with the following adjustments:

a) Expenses for the maintenance of the Dog in the amount of $2,185.16 are disallowed;

b) Interest on Credit Card Purchases in the amount $7,943.60 are disallowed;

c) Legal fees of $500.00 are disallowed in respect of accounts already paid, with the further sum of $6,397.08 allowed for accounts paid by the Administratrix after the Interim Distribution was made; and

d) The Administratrix Fee is reduced by $4,000, to $15,750. [ 91 ] With those adjustments being made, the Administratrix owes to the estate the sum of $8,231.68, one half to the PG&T’s office in trust for the younger child and one half to the older child (the “Adjustment”). [ 92 ] The legal costs in passing the Accounts are to be paid as an Estate expense, on a special costs basis. [ 93 ] The Adjustment is to be paid within 30 days of the final passing of, or agreement of the parties as to, the legal costs incurred by the Estate for passing the Accounts. [ 94 ] A retainer of at least $5,000 has been paid by the Administratrix to counsel in that respect.

Thus, if the Administratrix has only paid the $5,000 retainer to date, the amount required by her to be paid back to the Estate will be $3,231.68, with one half of that amount, that being $1,615.84 being payable to the PG&T’s office to be held in trust for the younger child, and the other one half to be paid to the older child. [ 95 ] Given that the passing of the Accounts took a full two days of hearing, with pre-hearing conferences being held and further affidavit evidence filed, I expect that the final invoices for passing the Accounts has exceeded the retainer amount.

The Administratrix is entitled to be reimbursed for those amounts as well.

In this respect, [ 96 ] If the Administratrix has paid more, those amounts should be reflected in the Adjustment when the order is submitted for entry to account for a reimbursement to, or from, the amounts held in trust with the PG&T Office and from the older child. [ 97 ] Further, any unpaid invoices for the passing of the Accounts, once those accounts are passed or agreed to by the parties as reasonable, are also payable from the Estate, one half from the amounts held by the PG&T’s office and one half from the older child. [ 98 ] As I am not privy to those final amounts, which may be subject to a taxation, or the logistics as to whom they may be payable, the parties have liberty to make those adjustments and submit the order for entry on the basis of numbers agreed to and whether the funds are to be reimbursed to the Administratrix or paid to counsel, if accompanied by an affidavit setting out the calculations and any agreements reached in that respect. [ 99 ] If they are unable to agree on the calculations, the order shall be as set out in paras. 90 to 93.

The parties will then have to proceed with a further registrar’s hearing for approval of the costs for passing the Accounts. [ 100 ] Given how long this matter has taken to be resolved, my hope is that the parties take a pragmatic approach and can reach an agreement without further court applications or hearings. [ 101 ] In addition, I order that upon the passing, or agreement of the Children, of the legal costs for passing the Accounts, the Administratrix is discharged. “Master Robertson” sitting as registrar