McLeod v. McLeod

McLeod v. McLeod

On the summary trial the court found as a matter of law and fact that Ms. McLeod breached the Grandchildren's Trusts by failing to hold and pay separate shares and by using those funds to finance estate and D.M. Co. operations, thereby preferring residuary beneficiaries; the BC court has jurisdiction to determine breaches and grant remedies in respect of assets in BC but cannot alter or remove an executrix appointed by an originating jurisdiction's probate grant by cancelling the resealed grant except in appropriate circumstances; given pending sale of the commercial property and limited demonstrated loss, the court declined to cancel the resealing or remove the executrix at this time but...

Citation
2011 BCSC 1942
Parties
Plaintiff (wife of Deceased): Rose Marie McLeod; Plaintiff (grandson and Beneficiary): William Allen James McLeod; Defendant; Executrix and Trustee: Lisa Ann Ruth McLeod
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 January 2011
Procedural Posture
Estate Administration (trust Dispute) / Summary Trial Application (oral Reasons in Chambers)
Outcome
Declaration of breach of trust; order to pay grandchildren upon sale; passing of accounts ordered; application to remove executrix dismissed; other applications adjourned; costs awarded to claimants
Legal Topics
Breach of Trust, Removal of Trustee/executrix, Resealing of Probate, Passing of Accounts, Jurisdiction to Act on Resealed Probate
Source Language
English
Trusts and Estates Probate Equity Civil Procedure Breach of Trust Removal of Trustee/executrix Resealing of Probate Passing of Accounts +1 more

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Parties

Rose Marie McLeod

Plaintiff (wife of Deceased)

William Allen James McLeod

Plaintiff (grandson and Beneficiary)

Lisa Ann Ruth McLeod

Defendant; Executrix and Trustee

Procedural Posture

Estate Administration (trust Dispute) / Summary Trial Application (oral Reasons in Chambers)

Legal Issues

  1. 1 Whether issues are suitable for summary trial under Rule 9-7
  2. 2 Whether executrix breached the Grandchildren's Trusts by intermingling and using proceeds
  3. 3 Whether British Columbia court has jurisdiction to remove or otherwise deal with an executrix appointed by an Alberta grant resealed in BC

Ratio Decidendi

On the summary trial the court found as a matter of law and fact that Ms. McLeod breached the Grandchildren's Trusts by failing to hold and pay separate shares and by using those funds to finance estate and D.M. Co. operations, thereby preferring residuary beneficiaries; the BC court has jurisdiction to determine breaches and grant remedies in respect of assets in BC but cannot alter or remove an executrix appointed by an originating jurisdiction's probate grant by cancelling the resealed grant except in appropriate circumstances; given pending sale of the commercial property and limited demonstrated loss, the court declined to cancel the resealing or remove the executrix at this time but...

Court Disposition

Declaration of breach of trust; order to pay grandchildren upon sale; passing of accounts ordered; application to remove executrix dismissed; other applications adjourned; costs awarded to claimants

Orders

  • Declaration that Ms. McLeod acted in breach of trust by failing to fulfil the Grandchildren's Trusts when Tiffany and William each reached age 23 and thereby preferred residuary beneficiaries
  • Declaration that Ms. McLeod holds the net proceeds from sale of the House in trust for Tiffany and William and that upon sale of the Commercial Property she pay those net proceeds to Tiffany and William with interest