Wilkinson v. Wilkinson

Wilkinson v. Wilkinson

On the balance of probabilities the respondent Nancy Wilkinson engaged in conduct constituting neglect to administer and wasting the estate and acted in conflict of interest by unilaterally using estate funds to improve property she sought to acquire, removing funds without consent, withholding the will and otherwise prioritizing personal interests over fiduciary duties; those findings satisfy statutory and common law grounds for removal under Probate Act s.61 and established equitable principles; accordingly Nancy is removed as co-executor and replaced by Derek M. Land, and the court directed procedures (appraisals, offers, and sale process) for disposition of the residence and cottage...

Citation
2019 NSSC 52
Parties
Applicant; Co Executor and Co Beneficiary of the Estate of Earl Gray Wilkinson; Co Administrator and Co Beneficiary of the Estate of Annette Wilkinson: Debbra Ann Wilkinson; Respondent; Co Executor and Co Beneficiary of the Estate of Earl Gray Wilkinson; Co Administrator and Co Beneficiary of the Estate of Annette Wilkinson: Nancy Lynn Wilkinson; Respondent; Co Executor and Co Beneficiary of the Estate of Earl Gray Wilkinson; Co Administrator and Co Beneficiary of the Estate of Annette Wilkinson: Belinda Lee Wilkinson
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
11 February 2019
Procedural Posture
Probate / Estate Administration Dispute (application to Remove Executor and Order Transfer/sale of Estate Real Property) / Decision Following Hearing (heard January 16, 2019; Decision Rendered February 11, 2019)
Outcome
Nancy Lynn Wilkinson removed as co-executor/co-administrator; Derek M. Land appointed co-executor in her place; estate property disposition procedures ordered; TFSA claim withdrawn by applicant and court declined to rule on resulting trust issue.
Legal Topics
Removal of Executor, Conflict of Interest of Personal Representative, Sale and Distribution of Real Property Under Probate Act S.50, Executor Remuneration and Replacement, Resulting Trust / Beneficiary Designation (tfsa)
Source Language
English
Probate Trusts Estate Administration Property Law Fiduciary Law Removal of Executor Conflict of Interest of Personal Representative Sale and Distribution of Real Property Under Probate Act S.50 +2 more

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Parties

Debbra Ann Wilkinson

Applicant; Co Executor and Co Beneficiary of the Estate of Earl Gray Wilkinson; Co Administrator and Co Beneficiary of the Estate of Annette Wilkinson

Nancy Lynn Wilkinson

Respondent; Co Executor and Co Beneficiary of the Estate of Earl Gray Wilkinson; Co Administrator and Co Beneficiary of the Estate of Annette Wilkinson

Belinda Lee Wilkinson

Respondent; Co Executor and Co Beneficiary of the Estate of Earl Gray Wilkinson; Co Administrator and Co Beneficiary of the Estate of Annette Wilkinson

Procedural Posture

Probate / Estate Administration Dispute (application to Remove Executor and Order Transfer/sale of Estate Real Property) / Decision Following Hearing (heard January 16, 2019; Decision Rendered February 11, 2019)

Legal Issues

  1. 1 Whether Nancy Wilkinson should be removed as co-executor/co-administrator under s.61 of the Probate Act for neglecting to administer or settling the estate and wasting the estate
  2. 2 Whether Nancy’s unilateral expenditures and conduct amount to a conflict of interest warranting removal
  3. 3 How to dispose of the two real properties (residence and cottage) held tenants in common when title cannot be divided and beneficiaries disagree on values and allocations under s.50 of the Probate Act

Ratio Decidendi

On the balance of probabilities the respondent Nancy Wilkinson engaged in conduct constituting neglect to administer and wasting the estate and acted in conflict of interest by unilaterally using estate funds to improve property she sought to acquire, removing funds without consent, withholding the will and otherwise prioritizing personal interests over fiduciary duties; those findings satisfy statutory and common law grounds for removal under Probate Act s.61 and established equitable principles; accordingly Nancy is removed as co-executor and replaced by Derek M. Land, and the court directed procedures (appraisals, offers, and sale process) for disposition of the residence and cottage...

Court Disposition

Nancy Lynn Wilkinson removed as co-executor/co-administrator; Derek M. Land appointed co-executor in her place; estate property disposition procedures ordered; TFSA claim withdrawn by applicant and court declined to rule on resulting trust issue.

Orders

  • Nancy Lynn Wilkinson removed as co-executor and co-administrator of the estates of Annette Wilkinson and Earl Gray Wilkinson
  • Derek M. Land is appointed as co-executor and shall replace his role as Proctor; he shall continue to be paid at his hourly Proctor rate rather than a percentage commission