Docket: CACV2168 Donald Thiel Appellant (Respondent) - v. -, 2012 SKCA 22

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 22 Date: 20120217 Between: Docket: CACV2168 Donald Thiel Appellant (Respondent) - and - Joan Friestadt and Wesley Thiel Respondents (Applicants) Coram: Klebuc C.J.S., Lane and Smith JJ.A. Counsel: Angela Eagle for the Appellant Joan Friestadt appearing on her own behalf

Edna Thiel appearing for the Respondent Wesley Thiel Appeal: From: Q.B.G. No. 1479 of 2010, J.C. Saskatoon Heard: February 17, 2012 Disposition: Appeal allowed (orally) Written Reasons: February 29, 2012 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Smith Lane J.A. [ 1 ] The appellant appeals his removal as an executor of his father’s estate by a Queen’s Bench judge in Chambers. The parties are the three children and sole beneficiaries of the testator who died on September 10, 2008.

The appellant Donald lives in Ontario, the respondent Wesley lives in Alberta, and the respondent Joan lives in Saskatchewan. At the time of the testator’s death, Joan was the deceased’s attorney under a power of attorney granted to her. Letters probate were granted on April 15, 2009. We allowed the appeal orally with written reasons to follow and these are the reasons. [ 2 ] The appellant had demanded an accounting from Joan both for the time she served as attorney and as executor.

For some time after the death of the testator, Donald refused to sign any of the documents necessary for the orderly administration of the estate until he received the accounting. In October of 2010, Joan and Wesley applied to have Donald removed as executor on the grounds he was delaying administration of the estate. Shortly after the filing of the application, Donald executed and returned all documents required at that time. He also retained counsel in Saskatchewan.

The matter was adjourned sine die but eventually reopened in August of 2011 and ultimately heard on September 1, 2011 resulting in the removal of the appellant and this appeal. [ 3 ] The appellant argues there is a high threshold for the removal of a trustee (in this case an executor) and an appointment of a trustee (or executor) ought not to be overturned lightly. He contends the Chambers judge relied on three essential findings to support the removal of the appellant and none of these findings were supported by the evidence.

The Chambers judge concluded the estate was at a standstill, there was a persistent lack of cooperation from Donald, and that his lack of cooperation led to a lack of access to money in the estate which monies would have allowed repairs to the testator’s house to bring it up to marketable standards. The delay in selling the house was laid at the foot of the appellant. [ 4 ] The respondent Joan was unrepresented and was assisted by Wesley’s wife who had been helping Joan with the estate.

Joan argued the appellant as an executor would continue to delay the matter and gave as an example the delay in Donald signing the listing agreement for the house because he was on a three-week holiday.

She argues he should have been accessible. [ 5 ] We are all of the view the affidavit evidence submitted does not support the Chambers judge’s findings. [ 6 ] As of the date of the hearing, the only issues outstanding were the final clearance from the Canada Revenue Agency, the transfer of UGG shares, and the sale of the house. [ 7 ] By letter dated November 9, 2010 from the appellant’s solicitor to the estate solicitor enclosing all the signed documents, the appellant’s solicitor wrote “[a]s requested previously, please provide us with a list of items which remain to be completed on the estate such that we can advise our client appropriately.

May we please hear from you as soon as possible as there is a pending court application to have our client removed as Executor.” [ 8 ] Therefore, as of November 9, 2010, after the application had originally been adjourned but before the hearing, all documents

required to be executed by Donald at the time had been executed. [9] By letter dated March 16, 2011 from Donald’s solicitor to the estate solicitor, the estate solicitor was advised that Donald wasagreeable to having Joan sign the income tax return.

Ultimately, the Canada Revenue Agency required all three signatures but no delaywas attributed to Donald. [10] Donald admits to delay on signing the necessary documentation to transmit the UGG shares but contends it was an oversight whichwas corrected and the value of the shares is small compared to the value of the estate. [11] The Chambers judge attributed the inability to sell the testator’s house to the actions of Donald.

The Chambers judge said“Illustrative of the kind of problems that have resulted is that the residence of the deceased, which should obviously have been sold along time ago has not been marketable due to an escalating mould problem and lack of access to money in the estate which should havebeen available to fix the problem and render the property saleable.” [12] The appellant contends the mould problem existed prior to the death of the testator. The house would not have been sold in anyevent.

Further, it was necessary to determine the extent of the problem and then to obtain estimates of repair before any decisions couldbe made. [13] By letter dated July 15, 2011, only one-and-a-half months prior to the Chambers hearing, the solicitor for the estate advised thesolicitor for the appellant the company retained had not completed their assessment of the house to date. He advised the appellant’ssolicitor as follows: “Action Services has not completed their assessment of the house to date.

I will continue to press to have itcompleted as soon as possible.” In other words, the house was not ready to be sold at least until shortly before the hearing in any event. Further, there had been a significant distribution of monies from the estate to the beneficiaries which would have allowed the repairs tohave been completed.

The Chambers judge’s conclusion the delay was the responsibility of the appellant was simply not supported onthe evidence. [14] “It is a well settled principle of the law of trusts that a trustee must act in the best interests of the beneficiaries.” See, for example,para. 10 of Ocean Man Trust, Re (1993), (SK CA), 113 Sask. R. 179 (C.A.) and para. 15 of Saskatchewan (PublicGuardian and Trustee of) v. Ray, 2006 SKQB 475. [15] Further, the action to remove an executor is one which should not be exercised lightly. In Ulmer Estate v.

Ulmer Estate, 2000SKQB 209, Wimmer J. said at para. 2: 2 To override a testator's choice of an executor is a sensitive exercise not to be lightly undertaken. Presumably, the testator hasappointed those in whom he has confidence to give effect to his wishes and a court should interfere only where it is clear that theconfidence was misplaced. … [16] The original delays by the appellant had been rectified shortly after the application for removal filed in October of 2010. The delayin filing the necessary documents for the transmission of the UGG shares was claimed to be an oversight and was corrected.

The delayin the sale of the house was not the fault of the appellant save for the delay of three weeks in signing the listing agreement while theappellant was on holidays. This delay cannot constitute the basis for the removal of the appellant as executor. [17] The appellant was ordered to pay costs personally in the amount of $1,000 by the Chambers judge. He ought to have his costs onthe appeal in the usual manner payable by the respondents out of their shares of the estate and it is so ordered.