COURT FILE NO.: CV-19-009 (Owen Sound)
DATE: 2021 06 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angus Gibbons
Michael Forcier, for the Applicant
Applicant
- and -
Barbara Lemont and Donna Wood
Allen Wilford, for the Respondents
Respondents
HEARD: June 14 and 15, 2021
REASONS FOR JUDGMENT
Sproat J.
INTRODUCTION
[1] Bertha Gibbons died on April 15, 2013. She was survived by her three children, the Applicant and the Respondents. At trial the parties referred to each other by their first names and I will do the same.
[2] The Last Will and Testament of the deceased is dated March 20, 2013. It names Barbara and Donna as the Estate Trustees.
[3] The deceased was a hoarder and her principal asset was her house. Barbara and Donna gave evidence that:
a) over time their mother filled up the second and ground floor of the house, in some places to the top of the door frame, with useless items;
b) she left out dirty dishes and spoiled food with the result that there was a rodent infestation;
c) rodent damage weakened the main floor;
d) a real estate agent advised that when the house was partially cleared out the house would sell for approximately $100,000.
[4] Barbara and Donna decided to do work to improve the house for sale by drywalling, painting and structural supports. It ultimately sold for $180,000.
[5] Angus raises a number of issues as to the propriety of the estate administration. The parties agreed that affidavits they had filed should be taken as their examination-in-chief with the ability to supplement that by oral evidence if so advised. The parties would then be subject to cross-examination. The longest cross-examination was approximately 5 – 10 minutes so the parties essentially agreed to have the case decided primarily upon the affidavit evidence.
[6] I think the parties were well advised to not run up the costs by days of evidence and extensive cross-examinations. As a result, there was really no cross-examination that would assist in making determinations as to credibility and reliability. Given the conflicting evidence, I am not in a position to find on a balance of probabilities that any of the parties acted dishonestly or made intentionally false statements in their evidence.
[7] The cash available to the Estate today is as follows:
a) Net proceeds from sale of house $77,683.90
b) Chequing account $26.20
c) Savings account $9,688.63
Total $87,398.73
THE ISSUES
Introduction
[8] The Estate had little cash. There was no money to hire professional cleaners. Barbara and Donna had a strained relationship with Angus so it was reasonable of them to anticipate that if they simply loaded the house contents into dumpsters he would complain they had been negligent. They were embarrassed at the state of the house and concerned that family heirlooms would be lost if the contents were dumped. Barbara and Donna were placed in a very difficult situation after their mother died.
[9] In hindsight, Barbara and Donna might have been better off to have declined to act as Executors. This would probably have led the bank to take mortgage enforcement action. The contents would have been disposed of and the house sold “as is” in 2014. On that scenario there would probably have been no money to distribute to anyone.
Alleged Breach of Duty to Probate Will and Maintain Proper Accounts
[10] Mr. Wilford is the fourth lawyer representing Barbara and Donna. Their evidence is that they were poorly served by the first two lawyers who did not advise them as to their legal obligations and failed to apprise them of court orders. For the sake of these reasons I will accept that evidence. This should not be taken as a finding akin to a declaration that they were poorly advised. The lawyers in question have had no ability to respond and, in these situations, lawyers and clients often have quite different versions of events. In any event, whatever advice was received, any shortcomings should not prejudice Angus.
[11] I find that at all times Barbara and Donna were honestly attempting to discharge their responsibilities as Executors. As I will later explain, my conclusion is that the Estate benefitted by their efforts.
[12] While it did take a lot of time to convert the asset of the house to cash, Donna suffered a broken wrist and ankle in 2014. She also assumed the care of two grandchildren. Barbara sometimes worked at two jobs. They enlisted family and friends to help do the work and provided them with meals or nominal payment.
Claim By The Executors For Compensation
[13] Paragraph 7 of the Will provides that the, “Executors shall not receive any compensation whatsoever for acting as the Executors and Trustees of my Estate.”
[14] The executors filed the September 20, 2019 affidavit of Harry Dekker, of H.J. Dekker Contracting, who detailed work that needed to be done to ready the house for rent or to be able to sell it. 60 percent of the main floor had only a sub-floor. Interior doors were damaged and had holes. Drywall had large holes with vapour barrier exposed. The main entrance floor was decayed and unsafe. Plumbing work needed to be done on the kitchen sink and bathroom fixtures.
[15] Barbara and Donna indicated that between the two of them they spent approximately 2,600 hours removing items from the home and cleaning and fixing the house so that it could be sold. It took approximately four years for the house to be sold.
[16] Barbara and Donna took on the task of cleaning and repairing the house out of necessity. Most of the work they did was far outside of what could reasonably be expected of an executor. If they did not do the work someone would have to be paid to do so. And the nature of the work required was such that it would be hard to find anyone to do it. Having said that, some of the work they did would typically be done by an executor, such as sorting through personal effects and documents.
[17] While admittedly, a rough and ready estimate, I find that Barbara and Donna should receive total compensation for 75 percent of the 2,600 hours they claimed at $15 per hour. This amounts to $29,250. This discounting recognizes that they cannot be compensated for time spent on executor’s duties.
[18] If Barbara and Donna sold the house “as is” there probably would have been no funds to distribute after payment of the mortgage. By their efforts, perhaps aided by a rising real estate market, there are net proceeds of approximately $77,000 from the sale of the house.
Amounts Paid Or Payable For “Out Of Pocket” Expenses
[19] The Will was never probated. The real estate lawyer who acted on the sale of the house retained the net proceeds in his trust account. On October 10, 2017 the lawyer paid $13,370.88, out of his trust account, to Barbara for “out of pocket” expenses. On March 6, 2018 the lawyer made a further payment out of the trust account to Barbara in the amount of $11,537.78.
[20] On July 10, 2018 Mr. Forcier wrote to Barbara and Donna asking for an accounting of the Estate in the form required by the Superior Court of Justice. Mr. Forcier repeated that request by letter dated September 10, 2018.
[21] I do accept that Barbara and Donna incurred the out of pocket expenses they claimed. There are receipts for most of the expenses and others are fairly well itemized or explained.
[22] I further find that Barbara is owed an additional $6,848.65, and Donna is owed a further $3,578.65 for out of pocket expenses.
Unfair And Unequal Distribution Of Personal Effects
[23] Paragraph 2(c) of the Will directed the Executors to give any personal effects to the person listed, “on a memorandum with my Will”. I accept the evidence of Barbara and Donna that no such memorandum was ever found.
[24] The evidence of Barbara and Donna was that they attempted to contact Angus by various means to involve him in the process of distributing the personal effects. He did not respond. They, therefore, devised a process in which they divided up personal effects into a number of lots with an assigned number for each. An affidavit filed by Paul Strucyk indicated that he drew numbers on behalf of Angus and that the personal effects were divided up accordingly.
[25] I accept this evidence. I find that this was a fair way of dealing with the personal effects in the absence of a memorandum.
CONCLUSION
When costs have been decided, counsel should be able to agree on a final order to implement my reasons. I will, however, remain seized to deal with any issues that may need to be addressed to make a final distribution to the parties. I expect that Barbara and Donna can agree how to divide the total compensation of $29,250, however, if they cannot I will decide that based upon written submission from each of them.
[26] Mr. Wilford shall provide me with his costs outline and brief written submissions within 20 days. Mr. Forcier shall respond within a further 15 days. Reply, if any, within a further 5 days.
Sproat J.
Released: June 30, 2021
COURT FILE NO.: CV-19-009
DATE: 2021 06 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angus Gibbons
Applicant
- and -
Barbara Lemont and Donna Wood
Respondents
REASONS FOR JUDGMENT
Sproat J.
Released: June 30, 2021```