IN THE MATTER OF THE ESTATE OF GEORGE B. INGRAM Counsel: Dean D. Muma for the Estate FIAT ROBERTSON J. January 13, 2021 INTRODUCTION [ 1 ] This fiat addresses an application for revocation of Letters Probate v. grant of Letters of Administration with, 2021 SKQB 10

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2021 SKQB 10 Date: 20 21 01 13 Docket: QBS 109 of 2015 Judicial Centre: Moose Jaw BETWEEN: IN THE MATTER OF THE ESTATE OF GEORGE B. INGRAM Counsel: Dean D. Muma for the Estate FIAT ROBERTSON J.

January 13, 2021 INTRODUCTION [ 1 ] This fiat addresses an application for revocation of Letters Probate and grant of Letters of Administration with Will Annexed, without bond. [ 2 ] The application raises the question of what happens when an executor dies or otherwise becomes unable to act and what happens when the beneficiary dies before the estate is concluded, so that there are two surrogate court files, each in a different judicial centre. As is always the case, the law provides an answer. BACKGROUND [ 3 ] George B. Ingram and Florence Mabel Ingram were married.

Both had wills. [ 4 ] George died on May 8, 2015. George, in his will, named Florence as executrix of his estate and sole beneficiary. [ 5 ] On November 23, 2015, Keene J. granted probate of George’s estate, appointing Florence as executrix. The value of George’s estate was then valued at $26,842.22. The Letters Probate were issued November 25, 2015: Judicial Centre of Moose Jaw, QBS 109 of 2015. [ 6 ] Florence died on November 28, 2015. Florence, in her will, did not name an executor.

Florence left her estate to George and, if he predeceased her, as occurred, then to her seven named children: Bonnie Hamel of Prince Albert; Thomas (Tom) Ingram of Coronach; Les Ingram of Coronach; Brenda Mah of Calgary; Dale Ingram of Calgary (now Coronach); Marie Ingram (now McMinniman) of Calgary; and Laurel Ingram of Coronach (now Assiniboia). [ 7 ] Some disputes arose between the beneficiaries that resulted in litigation over Florence’s estate.

On January 29, 2018, Megaw J. issued a fiat resolving some of these disputes: Ingram v Ingram , 2018 SKQB 40 . [ 8 ] On June 20, 2020, Robertson J. granted administration with will annexed, appointing Bonnie Hamel and Brenda Mah as administrators of Florence’s estate: Judicial Centre of Regina, SUR 293 of 2020. [ 9 ] On December 21, 2020, Bonnie Hamel and Brenda Mah applied for Revocation of Letters Probate and Grant of Letters of Administration with Will Annexed, without bond, for George’s estate.

All of their other siblings, as residual beneficiaries of Florence’s estate, renounced their right to administration and consented to the appointments and lack of bond. [ 10 ] Florence’s estate is valued at $1,199,005.73. It includes five parcels of land in the Coronach area which had been jointly owned with her husband George. ISSUE [ 11 ] The facts of this case raise three related questions: 1. What should happen when the executrix of an estate dies or otherwise becomes unable to act?

2. What should happen when the sole beneficiary dies before the estate is administered? 3. What should happen when the two surrogate court files are in different judicial centres? ANALYSIS [12] I will address the three questions below and then make an order which is intended to allow the administration ofboth estates to move forward. What should happen when the executrix of an estate dies or otherwise becomes unable to act? [13] The Administration of Estates Act, SS 1998, c A-4.1, in s. 3, gives this Court jurisdiction over estates, includingin subclause 3(1)(b)(

i) the authority to “hear and determine all actions and matters relating to the granting and revoking of letters probateand letters of administration”. [14]

Part 16 of The Queen’s Bench Rules addresses “Probate and Administration of Estates”. The Queen’s BenchRules are intended to be read and applied with regard to the foundational rules of

Part 1. Chief Justice Popescul, in Pervez v Caskey,2013 SKQB 377 at para 25, [ 2013] 12 WWR 794, referred to “the guiding principle of proportionality”. [15] Rule 16-16 lists the order of priority for persons entitled to apply for a grant of probate or administration withwill annexed. The first category is executors followed by residuary beneficiaries. In this case, Florence was the named executrix forGeorge’s estate.

Her children, who include Bonnie Hamel and Brenda Mah, were the residual beneficiaries of George’s estate. [16] Rule 16-29 provides for the situation where an administrator or executor of an estate dies leaving part of theestate unadministered. Grant of letters of administration de bonis non 16-29(1) If the administrator of an estate has died leaving part of the estate unadministered, an application may be made for a grant ofletters of administration de bonis non to complete the administration of the estate.

(2) If the executor of an estate has died intestate and there are no other executors to carry on the administration of the estate or if theadministrator with the will annexed of an estate has died leaving part of the estate unadministered, an application may be made for agrant of administration de bonis non with the will annexed to complete the administration of the estate.

(3) An application for administration de bonis non must be made by filing an application in Form 16-29A.

(4) An affidavit verifying an application for grant made pursuant to this rule must be in Form 16-29B.

(5) The original grant must be surrendered with the application or, if the original has been lost, a court certified copy of the grant must befiled. [17] The Dictionary of Canadian Law, 2d ed at 301, defines de bonis non administratis, as “A grant made when anadministrator dies without having fully administered an estate or an executor dies intestate”. [18] This Court considered grants de bonis non administratis in: Wallace Estate (Re) (1952) (SKKB), 5 WWR (NS) 473 (Sask QB); Flaman Estate (Re) (1997), (SK KB), 156 Sask R 305 (Sask QB); Bull Estate(Re) (1998), (SK KB), 178 Sask R 147 (Sask QB) [Bull]; and Gawdun Estate (Re), 2010 SKQB 47, 352 Sask R 98[Gawdun]. [19] In Bull, Gunn J. considered a case where land in Saskatchewan had never been transferred from the name of thedeceased, whose estate was probated in Massachusetts, USA, but never re-sealed in Saskatchewan.

Without such re-sealing or ancillarygrant of letters of administration, the out-of-province probate had no authority in Saskatchewan, so no ability to order transfer of theland. Years later, the son of the intended beneficiary applied to have the land transferred to him. Gunn J. held that the proper remedy wasa grant de bonis non. [7] … The law on this point is expressed in Ingalls v.

Reid (1865), 15 U.C.C.P. 490 (C.A.), as reported in the Canadian Abridgement2nd Ed. (Toronto: Carswell, 1992) R14C at p. 285: … Upon the death of a surviving or sole administrator, in order to effect a representation of the first intestate, the Ordinary, whether theadministrator died testate or intestate , must appoint an administrator de bonis non; for an administrator is merely the officer of theOrdinary in whom the deceased has no trust; and, therefore, on the death of the administrator no authority can be transmitted by him tohis executor or administrator, but it results to the Ordinary to appoint another officer. [8] On the death of a sole or last surviving administrator, the court must, in order to constitute a representative to the originaldeceased, make a grant de bonis non. [20] In Gawdun, Chicoine J. considered the case where a co-executor was unable to continue due to illness, holdingthat the other co-executor should apply for letters of administration de bonis non with will annexed. [6] In my opinion, the proper procedure in this case will be for the applicant, Virginia Pickard, to apply for letters of administration debonis non with will annexed in Form 114 with such modifications as may be applicable to the current situation. [7] The application should be accompanied with an Affidavit of Applicant for Administration de bonis non in Form 115 and a statementshowing all of the property of the deceased at the time of death remaining unadministered, showing the fair market value thereof at the

time the application for the grant of administration de bonis non . The original grant should be returned (as an attachment to the Affidavit of Applicant) if it is still in existence.

The Local Registrar’s fee will be calculated in accordance with s. 51(3) of The Administration of Estates Act (to a maximum of $200.00). [8] Since there is an issue whether the executor who is being removed should be given the right to join again when he recovers, the application should also include an affidavit of a medical doctor explaining why Kelly Gawdun is unable to continue to act as an executor and providing a prognosis for recovery from his present condition. [9] For the reason that the applicant is one of the executors named in the will, no security will be required. [10] When the grant of administration de bonis non with will annexed is issued, it should contain a notation that the grant of probate dated January 22, 2001, is revoked due to the incapacity of the other named executor, Kelly Gawdun.

Inquiries should thereafter be made of the Registrar of Titles to determine if the new grant will suffice to transmit the title which is now registered in the names of the two executors into the name of the sole personal representative.

If any problems are encountered in this regard, an application for further directions should be made. [11] Leave is granted to the estate solicitor to request further directions if required and to remove any documents from the court file that may be required to prepare the application for administration de bonis non with will annexed. [ 21 ] While Rule 16-29 does not exactly match the situation here, where the executrix died leaving the estate unadministered and with a will but without having named her own executrix, the foundational rules in

Part 1 and Rule 16-1 allow the court some leeway in applying the rules. [ 22 ] The application filed is titled “Application for Grant of Administration with Will Annexed”. Although the form number does not appear, that is the title of Form 16-11B and the contents match that form. [ 23 ] For the reasons stated above, I wonder if the application might not have been in Form 16-29A, titled “Application for Administration De Bonis Non ”. On the other hand, perhaps neither rule or form is a precise match for this situation.

If required, I would apply Rule 1-6 to cure any irregularity in the application so as to grant the relief sought. What should happen when the sole beneficiary dies before the estate is administered? [ 24 ] The two estates remain to be administered. It makes good sense for the two estates to be administered together. The beneficiaries, by their renunciation in favour of Bonnie Hamel and Brenda Mah, apparently agree. [ 25 ] I have previously appointed Bonnie Hamel and Brenda Mah as administrators of Florence’s estate. They now ask to also be appointed to administer George’s estate.

They have prudently retained an experienced and capable lawyer, Dean Muma of Sheppard Braun Muma, to act on their behalf in the administration of the two estates. [ 26 ] These steps should allow the administration of the two estates to be completed in an efficient manner. What should happen when the two surrogate court files are in different judicial centres? [ 27 ] There are two related surrogate court files: one in Moose Jaw for George’s estate; and one in Regina for Florence’s estate. Florence was the sole beneficiary of George’s estate and joint owner of their common property.

The property of George passed to Florence upon George’s death and then, upon Florence’s death, to their children. What remains is the necessary task of completing the administration of both estates. [ 28 ] While the files could remain in the different judicial centres, their administration will likely be easier if they are placed in the same centre. I have checked with the Local Registrars of both Moose Jaw and Regina and they have no objection to that. With the consent of Mr.

Muma, I will transfer the surrogate court file for George’s estate to Regina so that it can be administered in conjunction with Florence’s estate.

Summary of Order [ 29 ] I make an order: 1. Revoking letters probate granted November 23, 2015 and issued November 25, 2015 because of the death of the executrix, Florence Mabel Ingram; 2. Granting administration de bonis non with will annexed, without bond and with Bonnie Hamel and Brenda Mah appointed as co- administrators of the estate; 3. That a certificate of non-infant interest be issued; and 4.

Transferring this file (QBS 109/15) from the Judicial Centre of Moose Jaw to the Judicial Centre of Regina, so that it may be administered in conjunction with the Estate of Florence Mabel Ingram (Regina, SUR 239/20 (Sask QB)). [ 30 ] Since probate fees were previously paid at the Judicial Centre of Moose Jaw in 2015, the only fee payable is the application fee of $200, which the Local Registrar may deduct from the account of Sheppard Braun Muma. [ 31 ] Leave is granted to the estate solicitor to request further direction if required. J.

D.N. ROBERTSON