Re Abbott Estate

Re Abbott Estate

By consent and exercise of judicial discretion the Court removed the named executor, appointed the applicant as executor, ordered delivery of estate documents, required the respondent to pass accounts and validated the $250,000 distribution; the Court found pretaking of $50,000 by the executor warranted repayment to the estate with interest at 5% per annum from the dates taken to repayment and refused to make a separate declaratory breach of trust because repayment was the appropriate remedy; the Court declined to determine personal liability of the respondent for amounts ordered against the estate in the Smeets litigation at this time and left those issues to be addressed at passing of...

Citation
2023 BCSC 1738
Parties
Applicant; Alternate Executor and Sole Residual Beneficiary: Kathleen Alice Muriel McArthur; Respondent; Executor (removed): David Lorne Dickinson; Deceased: Helen Mary Jean Abbott
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 August 2023
Procedural Posture
Probate and Estate Application / Application for Removal of Executor, Appointment of Alternate Executor, Passing of Accounts and Ancillary Relief
Outcome
Application allowed in part by consent: respondent removed as executor; applicant appointed executor; repayment ordered; other ancillary orders made; personal liability for Smeets litigation dismissed without prejudice at this time
Legal Topics
Removal of Executor, Breach of Trust, Pretaking of Remuneration, Disgorgement, Passing of Accounts, Production of Estate Documents, Costs
Source Language
English
Trusts and Estates Probate Civil Procedure Equity Removal of Executor Breach of Trust Pretaking of Remuneration Disgorgement +3 more

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Parties

Kathleen Alice Muriel McArthur

Applicant; Alternate Executor and Sole Residual Beneficiary

David Lorne Dickinson

Respondent; Executor (removed)

Helen Mary Jean Abbott

Deceased

Procedural Posture

Probate and Estate Application / Application for Removal of Executor, Appointment of Alternate Executor, Passing of Accounts and Ancillary Relief

Legal Issues

  1. 1 Whether the executor should be removed and replaced
  2. 2 Whether pretaken executor fees must be repaid to the estate
  3. 3 Whether the executor is personally liable for amounts ordered against the estate in related litigation

Ratio Decidendi

By consent and exercise of judicial discretion the Court removed the named executor, appointed the applicant as executor, ordered delivery of estate documents, required the respondent to pass accounts and validated the $250,000 distribution; the Court found pretaking of $50,000 by the executor warranted repayment to the estate with interest at 5% per annum from the dates taken to repayment and refused to make a separate declaratory breach of trust because repayment was the appropriate remedy; the Court declined to determine personal liability of the respondent for amounts ordered against the estate in the Smeets litigation at this time and left those issues to be addressed at passing of...

Court Disposition

Application allowed in part by consent: respondent removed as executor; applicant appointed executor; repayment ordered; other ancillary orders made; personal liability for Smeets litigation dismissed without prejudice at this time

Orders

  • Remove David Lorne Dickinson as executor and trustee of the estate of Helen Mary Jean Abbott
  • Mr. Dickinson shall surrender the original Grant of Probate and all court certified copies to the court