RAYNA BRANDY HUNT APPLICANT - v. -, 2023 SKKB 190

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 190 Date: 2023 09 12 Docket: KBG-RG-02621-2022 Judicial Centre: Regina ___________________________________________________________________________ IN THE ESTATE OF GWENDOLYN KATHLEEN HUNT (DECEASED) BETWEEN: RAYNA BRANDY HUNT APPLICANT - and - CORY ROBIN HUNT RESPONDENT Counsel: Joanne C. Moser, K.C. for the applicant Eric A. Lanoie for the respondent ___________________________________________________________________________ FIAT MITCHELL J. September 12, 2023 ___________________________________________________________________________ A. Overview [ 1 ] Ms.

Gwendolyn Kathleen Hunt [Gwendolyn] died on October 12, 2019. In her Last Will and Testament executed on December 29, 2014 [Will], Gwendolyn appointed her two children—Rayna Brandy Hunt [Rayna], and Cory Robin Hunt [Cory]—as co-executors of her estate. As these individuals all share the same surname, I will refer to them by their first names.

I mean no disrespect when doing so. [ 2 ] Subsequently, Rayna decided to renounce her appointment as co-executor, and completed a formal renunciation of probate on January 30, 2021 in compliance with Rule 16-16(2) of The Queen’s Bench Rules . [ 3 ] Rayna has now changed her mind and applies to rescind her renunciation. She filed a caveat and commenced this originating application pursuant to

Part 3 of The Queen’s Bench Rules . On this originating application, Rayna seeks among other things, the following relief: 1. A declaration that the Applicant and the Respondent are to make the Application for Grant of Probate in the Estate of Gwendolyn Kathleen Hunt as Co-Executors, 2. A declaration that [Rayna’s] Renunciation of Probate, dated January 30, 2021, is null and void.

[4] The issue to be decided on this originating application is: can Rayna rescind her renunciation? [5] This fiat explains why I have concluded that she can. Accordingly, I grant the relief which Rayna hasrequested. B. Evidence Filed [6] The following materials were filed on this application:

(1) Originating Application dated November 4, 2022;

(2) Affidavit of Rayna Brandy Hunt sworn October 12, 2022 [Rayna’s Affidavit];

(3) Affidavit of Cory Robin Hunt sworn January 5,2023 [Cory’s Affidavit]; Affidavit of Darlene Shalovelo sworn January 6, 2023;

(4) Affidavit of Jessica Dawn Findlay sworn January 6,2023;

(5) Affidavit of Brenda Grohs sworn January 5, 2023;

(6) Affidavit of Cynthia Thurlow sworn January 5, 2023;

(7) Affidavit ofAmanda Kew sworn January 5, 2023;

(8) Reply Affidavit of Rayna Brandy Hunt sworn January 23, 2023;

(9) Affidavit of DarleneShalovelo sworn March 9, 2023, and

(10) Affidavit of Cory Robin Hunt sworn March 8, 2023. [7] Much information related in these various affidavits pertain to other aspects of Rayna’s originating application.I will only refer to the portions of certain affidavits filed which I find to be most relevant. [8] I also took the liberty of reviewing the relevant Surrogate Court file relating to Cory’s application for lettersprobate in this matter dated January 26, 2021: SUR-RG-00427-2021. C. Law [9] There are formal requirements which must be complied with for a named executrix’s renunciation to beeffective.

There are also certain common law principles relevant to when such a renunciation may be rescinded. 1. Formal Requirements [10] Rule 16-16 of The Queen’s Bench Rules addresses grants of letters probate. Rule 16-16(1) identifies the priorityof persons who may apply for letters probate if the deceased left a will. Assigned executors are named first: Rule 16-16(1)(a). [11] Rule 16-16(2) of The Queen’s Bench Rules deals with renunciation. It states: 16-16…

(2) If an executor does not apply for a grant, the executor shall renounce in Form 16-16. [12] Form 16-16 is relatively straightforward. In addition to the form being completed accurately, Form 16-16requires that an affidavit of execution attesting to the identity and capacity of the person who completed the form be filed with it. [13]

Section 12 of The Administration of Estates Act, SS 1998, c A-4.1 sets out the legal consequences flowing froma renunciation of probate. Subsection 12(

a) particularly states that provided an assigned executor properly renounces his or her right toapply for probate “the person’s rights with respect to the executorship…pursuant to the will cease”. 2. Common Law Principles [14] Case law addressing the question of when an executor may rescind his or her renunciation is sparse.

Counsel didnot refer me to any authority directly on point, and my research yielded only a few cases. [15] One such authority is Re The Estate of Karen Elaine McKee, 2003 BCSC 466 at paras 29-31 [McKee Estate].There, certain relevant legal principles are helpfully summarized as follows: [29] The law governing a court's discretion to grant leave to withdraw a renunciation from the probate registry is scant and notcontroversial as between the parties.

Both agree that "retraction of a renunciation by an executor is only reluctantly permitted by thecourt in very exceptional circumstances." [See Macdonnell Sheard and Hull on Probate Practice, 4th Edition, Scarborough, Ontario,Carswell 1996 page 183.] [30] In In the Goods of Gill, [1873] L.R.3 P.M.D. 113, it was held that where the only reason given for the application to retract arenunciation "is that (the applicant) has changed his mind", and it does not appear "that it will be for his benefit or for that of anyone elsethat he shall be allowed to retract it", leave should not be given. [31] In another case In the Goods of Styles, [1898] Probate Division 12, the court granted leave to retract and to renouncing an executorwhen the co-executor absconded after taking probate. [16] A second helpful authority is Re MacIssac and MacDonald (1983), (NS CA), 148 DLR (3d)553 (NS CA) [MacIssac].

MacIssac stands for the proposition that after letters probate are granted, an executor may be permitted torenounce only if it is shown that to do so “was in the best interests of the estate and all those interested therein”: MacIssac at page 559.See, also: Chambers Estate v Chambers, 2013 ONCA 511 at para 65, 367 DLR (4th) 151, and Goby v Frederick, 2020 SKQB 201. [17] In MacIsaac, however, the court per MacDonald J.A. made some highly relevant obiter statements respectingwhen it is permissible for an executor to rescind an earlier renunciation.

He began by noting that the Probate Act, RSNS 1967, c 238 ofNova Scotia was modelled after existing probate laws in the State of Massachusetts, and opined that consequently, American authoritywas relevant. MacDonald J.A. at page 558 then referenced the following statement of principle found in 33 CJS, "Executors andAdministrators", §29 at p. 920:

As a general rule an executor nominated in the will who has renounced may retract his renunciation and assume the office at any timebefore final issuance of letters to others . . . although it has been considered by some authorities that the acceptance of a retraction rests inthe discretion of the probate court. [18] MacDonald J.A. at pages 558 and 559 of MacIsaac, proceeded to review statements of principle from variousestate practice legal textbooks as well as an earlier decision from the Nova Scotia courts—Kaulbach v Mader (1902), 35 NSR 219 (NS SC).

For example, in Walker, A Compendium of the Law Relating to Executors & Administrators, 6th ed (1926) at page 23, the followingstatement is found: An executor is not necessarily concluded by a renunciation once declared. The rule has long been that he may retract his renunciation atany time before a grant of administration has passed the seal, but not afterwards, from the possible inconvenience that might accrue inother quarters, if the chain of executorship once broken were thus suffered to revive.

In any case the Court is not bound to allow aretraction. [19] Finally, MacDonald J.A. concluded his review of the law on this issue as follows at page 559: I do not find any case or text writer suggesting that a named executor who renounces the office cannot retract or withdraw suchrenunciation before probate of the will is granted. Indeed, Kaulbach v Mader, supra, permits retraction by court order after probate isgranted.

In that situation, however, I doubt if leave to withdraw would be granted by the court unless it were shown that to do so was inthe best interests of the estate and all those interested therein. [Emphasis added] See also: Stordy v McGregor (1986), (MB KB), 42 Man R (2d) 237 (QB) at para 9. [20] These are the legal principles which govern this originating application. [21] Authorities such as Sinclair v Sinclair, 2013 SKCA 123, 370 DLR (4th) 214 and Reiter v Powell, 2016 SKQB 99which were cited during oral argument are not relevant.

The central issue in those cases was when was it appropriate for a court toremove an executor, not when may an executor rescind an earlier renunciation. C. Discussion 1. Factual Background [22] When Gwendolyn died on October 12, 2019, she left an estate valued at $350,944.87. In the Will, Gwendolynappointed Cory and Rayna as co-executors. Gwendolyn also bequeathed certain real properties and all her shares in a Saskatchewannumbered company to Cory.

She then divided the residue of her estate between Cory and Rayna equally. [23] Rayna avers that she did not see a copy of the Will until April 2020, six months following the death of hermother. It was then Rayna first learned Gwendolyn had appointed her as a co-executor of the estate. See: Rayna’s Affidavit at paras. 2-3. [24] Cory disputes Rayna’s evidence. He avers, for example, that he gave Rayna a photocopy of the Will at thefuneral home on or about October 15, 2019.

He states that when Rayna discovered she was a co-executor she balked, announcing thatshe was “opting out” and “Cory would be handling it from here”.

See: Cory’s Affidavit at para. 9. [25] Rayna avers that on January 30, 2021, Cory compelled her to execute a renunciation of probate in Form 16-16.My review of the court file in SUR-RG-00427-2021 revealed that an affidavit of execution sworn by Mitchell Nagel-Zeller also onJanuary 30, 2021, was also submitted with that application. [26] It should be noted that Rayna had earlier executed what purported to be a renunciation of probate in Form 16-16dated April 29, 2020. See: Cory’s Affidavit at para. 22(

b) and Exhibit “L”. This renunciation did not comport with the formalrequirements of Form 16-16, and, accordingly, is not effective. [27] On April 19, 2021, Rayna filed a caveat. See: Rayna’s Affidavit at para. 6 and Exhibit “D”. This caveat has theeffect of postponing the issuance of a grant of probate in SUR-RG-00427-2021 until it lapses, is withdrawn or vacated by court order.See: Rule 16-41 of The Queen’s Bench Rules. [28] On July 6, 2021, Rayna’s lawyer, Ms.

Moser was notified by the Local Registrar’s office that Cory had filed anapplication for letters probate on June 18, 2021. [29] On July 14, 2021, Tochor J. issued an order on a without notice basis extending the caveat “until further order ofthe Court or upon consent between the parties for the removal of the caveat”. See: Rayna’s Affidavit at para. 8 and Exhibit “G”. 2. Analysis [30] At the outset, it is critical to state that the caveat which Rayna filed is still effective, and no letters probate mayissue.

This scenario distinguishes this matter from cases such as McKee Estate, and MacIsaac where an executor successfully rescindedan earlier renunciation after the grant of probate. That said, the principles of law set out in those authorities remain persuasive. [31] The evidence discloses that Rayna attempted to renounce formally her co-executorship of Gwendolyn’s estateon two separate occasions. While the first document was ineffective for its failure to comply with the formal requirements of Rule 16-

16(2) of The Queen’s Bench Rules, the second renunciation, a copy of which forms part of Cory’s probate application, is valid. It is fairto infer that initially, Rayna’s intention was to renounce. [32] Subsequently, and before any grant of probate has issued, Rayna changed her mind. She avers that she wants torescind her renunciation because in her opinion Cory has not been diligent in managing Gwendolyn’s estate, and she now desires to beactively and fully involved in its’ administration. [33] Cory impugns Rayna’s true motivation for requesting now to rescind her renunciation.

Particularly, he avers thatRayna has been “uncooperative, uninterested, and irresponsible” and “has lost several important documents, when it comes to dealingwith our mother’s estate”: Cory’s Affidavit at para. 38. [34] It is apparent that animosity exists between Cory and Rayna which could impede their joint administration oftheir mother’s estate.

That said, no grant of probate has been made, and the law is clear that in such a circumstance, it is permissible foran executor to rescind an earlier renunciation. [35] Accordingly, I am persuaded that Rayna’s request to rescind her renunciation of probate executed on January 30,2020, should be granted. I would note as well that allowing Rayna to continue as a co-executor of Gwendolyn’s estate accords with hermother’s wishes as set out in the Will. D. Costs [36] The last matter to be addressed is costs. Assessing costs in estate matters is somewhat different than intraditional civil litigation.

See, for example: Armstrong v Lee Grant, 2023 SKKB 111 at para 152, and Kreway v Karol, 2001 SKQB 523at paras 12-16, 43 ETR (2d) 60 [Kreway]. [37] If the litigation is caused by the testator when drawing the will, it is more likely that costs will be assessedagainst the estate. If, however, the circumstances of the case appear to reasonably justify an investigation into an issue related to theestate then the unsuccessful party may be relieved from paying the other party’s costs.

See: Kreway at para 14, quoting Re Dingwall, (ON SC), [1967] 2 OR 671 (HCJ) at page 672. [38] I am persuaded that the issue raised in this matter justified this originating application. Cory’s response to it wasa reasonable one. Accordingly, in these circumstances, I decline to make a costs order. Each party shall bear his or her own costs. E. Conclusion [39] Accordingly, for these reasons, I direct that Rayna’s renunciation of probate executed on January 30, 2020 isrescinded.

As co-executors, the parties should now move with reasonable dispatch to apply for letters probate respecting Gwendolyn’sestate. [40] I conclude with a comment respecting the procedure adopted in this matter. It came before the court as anoriginating application pursuant to

Part 3 of The Queen’s Bench Rules. However, it should properly have been commenced as anapplication under

Part 16 which governs all matters related to probate and the administration of estates, and bear a Surrogate Court filenumber, in this case SUR-RG-00427-2021. I direct counsel’s attention to Rule 16-1(2) of The Queen’s Bench Rules. J. G.G. MITCHELL