Funaro v. Funaro

Funaro v. Funaro

Applicant established an arguable case on misappropriation and resulting trust claims, the proceedings are necessary or expedient to protect the interests of the specified person (Joanna) given the circumstances and conflicts of interest of the personal representative, and Joanna is acting in good faith; accordingly leave under s.151 WESA is granted to commence the two representative actions and they are joined for trial.

Citation
2024 BCSC 2343
Parties
Plaintiff (on Behalf of the Estates of Joan Funaro and Giuseppe/ Joe Funaro): Joanna Funaro; Defendant (respondent; Executor/applicant Defendant): Charles William Funaro
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 December 2024
Procedural Posture
Application for Leave Under S.151 Wills, Estates and Succession Act (representative Actions) / Application for Leave; Judgment Granting Leave to Commence Two Representative Actions and Ordering Joinder for Trial
Outcome
Leave granted under s.151 WESA to commence two representative actions on behalf of the estates of Joan Funaro and Joseph (Giuseppe) Funaro; actions joined for trial; leave subject to directions of trial judge; parties may appear to speak to a stay of the wills variation action; costs of the applications to be costs...
Legal Topics
Leave Under S.151 WESA, Resulting Trust, Power of Attorney Misuse and Accounting, Breach of Fiduciary Duty, Tracing and Disgorgement, Wills Variation
Source Language
English
Wills and Estates Trusts and Equity Civil Procedure Fiduciary Duty Leave Under S.151 WESA Resulting Trust Power of Attorney Misuse and Accounting Breach of Fiduciary Duty +2 more

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Parties

Joanna Funaro

Plaintiff (on Behalf of the Estates of Joan Funaro and Giuseppe/ Joe Funaro)

Charles William Funaro

Defendant (respondent; Executor/applicant Defendant)

Procedural Posture

Application for Leave Under S.151 Wills, Estates and Succession Act (representative Actions) / Application for Leave; Judgment Granting Leave to Commence Two Representative Actions and Ordering Joinder for Trial

Legal Issues

  1. 1 Whether applicant has an arguable case on misappropriation of funds by attorney under power of attorney
  2. 2 Whether applicant has an arguable resulting trust claim over Boundary Road properties
  3. 3 Whether proceedings are necessary or expedient for protection of the estate or interests of a specified person under s.151(3)(b)

Ratio Decidendi

Applicant established an arguable case on misappropriation and resulting trust claims, the proceedings are necessary or expedient to protect the interests of the specified person (Joanna) given the circumstances and conflicts of interest of the personal representative, and Joanna is acting in good faith; accordingly leave under s.151 WESA is granted to commence the two representative actions and they are joined for trial.

Court Disposition

Leave granted under s.151 WESA to commence two representative actions on behalf of the estates of Joan Funaro and Joseph (Giuseppe) Funaro; actions joined for trial; leave subject to directions of trial judge; parties may appear to speak to a stay of the wills variation action; costs of the applications to be costs...

Orders

  • Leave granted pursuant to s.151 WESA to continue New Westminster Registry Action No. S251492 on behalf of the estate of Joan Funaro
  • Leave granted pursuant to s.151 WESA to continue New Westminster Registry Action No. S243679 on behalf of the estate of Joseph (Giuseppe) Funaro