Mikaloff (Re)

Mikaloff (Re)

Applying s.88 Trustee Act and the established factors (magnitude, care, time, skill, success), the Registrar found the executor performed substantial work, incurred personal outlays and managed litigation-related delays largely attributable to the beneficiary's actions, but the claimed capital fee was excessive for an interim passing. On quantum meruit and in fairness to all beneficiaries the appropriate interim capital fee was fixed at 3% and the care and management fee at 0.4%; other account items were acceptable or to be resolved at final accounting.

Citation
2018 BCSC 756
Parties
Deceased: Deloreen Mary Mikaloff; Executor: William Mitchell Mikaloff; Beneficiary: Gary Boer; Beneficiary: Jon Right; Beneficiary: Rosa Cutler; Beneficiary: Julie Shinkaruk; Beneficiary: Byron Mikaloff; Beneficiary: Leela Mikaloff; Beneficiary: Mathias Mikaloff; Beneficiary: Django Cutler
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 May 2018
Procedural Posture
Estate Administration Passing of Accounts / Interim Passing of Accounts Before District Registrar
Outcome
Interim accounts passed except for remuneration; executor awarded 3% capital fee and 0.4% care and management fee; costs awarded as special costs to both the executor and beneficiary Gary Boer to be assessed and paid by the estate.
Legal Topics
Executor Remuneration, Care and Management Fee, Passing of Accounts, Wills Variation, Costs
Source Language
English
Wills and Estates Trusts and Fiduciary Duties Estate Administration Executor Remuneration Care and Management Fee Passing of Accounts Wills Variation Costs

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Parties

Deloreen Mary Mikaloff

Deceased

William Mitchell Mikaloff

Executor

Gary Boer

Beneficiary

Jon Right

Beneficiary

Rosa Cutler

Beneficiary

Julie Shinkaruk

Beneficiary

Byron Mikaloff

Beneficiary

Leela Mikaloff

Beneficiary

Mathias Mikaloff

Beneficiary

Django Cutler

Beneficiary

Procedural Posture

Estate Administration Passing of Accounts / Interim Passing of Accounts Before District Registrar

Legal Issues

  1. 1 Whether the executor's claimed remuneration (4.5% capital and 0.4% care fee) is fair and reasonable
  2. 2 Whether executor is entitled to care and management fee under s.88 Trustee Act
  3. 3 Whether lack of accounting for personal effects, payments to property inspector, a $1,000 payment to executor, and garage sale reimbursements warrant adjustments

Ratio Decidendi

Applying s.88 Trustee Act and the established factors (magnitude, care, time, skill, success), the Registrar found the executor performed substantial work, incurred personal outlays and managed litigation-related delays largely attributable to the beneficiary's actions, but the claimed capital fee was excessive for an interim passing. On quantum meruit and in fairness to all beneficiaries the appropriate interim capital fee was fixed at 3% and the care and management fee at 0.4%; other account items were acceptable or to be resolved at final accounting.

Court Disposition

Interim accounts passed except for remuneration; executor awarded 3% capital fee and 0.4% care and management fee; costs awarded as special costs to both the executor and beneficiary Gary Boer to be assessed and paid by the estate.

Orders

  • Interim accounts of the executor are passed as presented except for executor remuneration
  • Executor's capital remuneration fixed at 3% of estate capital for the period under review