Stevens v. Whittaker

Stevens v. Whittaker

Given the urgency of foreclosure proceedings threatening the last significant estate asset and the conflict of interest and conduct of the appointed trustee, the court exercised its power under Rule 22-5(6) and s.31 of the Trustee Act to set aside the joinder and to remove Mr. Whittaker as executor/trustee of the Cultus Lake property and to appoint Ms. Stevens as interim executor/trustee of that property for the limited purpose of defending the foreclosure and preserving the asset pending trial.

Citation
2012 BCSC 1188
Parties
Petitioner/plaintiff: Sharon Anne Stevens; Respondent/defendant: Donald Lorne Whittaker
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
7 August 2012
Procedural Posture
Estate/trust Dispute; Petition and Civil Action / Interlocutory Application to Vary Joinder and for Interim Appointment of Trustee Pending Foreclosure
Outcome
Court set aside joinder of petition and action for trial; set aside appointment of Mr. Whittaker as executor/trustee of the Cultus Lake property; appointed Ms. Stevens as executor/trustee of the Cultus Lake property for the limited purpose of defending foreclosure proceedings and preserving the asset pending trial.
Legal Topics
Appointment of Trustee, Removal of Executor, Joinder of Proceedings, Supreme Court Civil Rules Rule 22 5(6), Trustee Duties and Accounting, Preservation of Assets Pending Foreclosure
Source Language
English
Trusts and Estates Civil Procedure Property Law Equity Foreclosure Appointment of Trustee Removal of Executor Joinder of Proceedings +3 more

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Parties

Sharon Anne Stevens

Petitioner/plaintiff

Donald Lorne Whittaker

Respondent/defendant

Procedural Posture

Estate/trust Dispute; Petition and Civil Action / Interlocutory Application to Vary Joinder and for Interim Appointment of Trustee Pending Foreclosure

Legal Issues

  1. 1 Whether the court should vary the joinder order under Rule 22-5(6)
  2. 2 Whether the executor/trustee (Mr. Whittaker) should be removed or restrained with respect to the Cultus Lake property
  3. 3 Whether an interim appointment of Ms. Stevens as trustee/executor over the Cultus Lake property is necessary to defend against foreclosure and preserve estate assets

Ratio Decidendi

Given the urgency of foreclosure proceedings threatening the last significant estate asset and the conflict of interest and conduct of the appointed trustee, the court exercised its power under Rule 22-5(6) and s.31 of the Trustee Act to set aside the joinder and to remove Mr. Whittaker as executor/trustee of the Cultus Lake property and to appoint Ms. Stevens as interim executor/trustee of that property for the limited purpose of defending the foreclosure and preserving the asset pending trial.

Court Disposition

Court set aside joinder of petition and action for trial; set aside appointment of Mr. Whittaker as executor/trustee of the Cultus Lake property; appointed Ms. Stevens as executor/trustee of the Cultus Lake property for the limited purpose of defending foreclosure proceedings and preserving the asset pending trial.

Orders

  • Order setting aside the joinder of the petition and the action for trial
  • Order setting aside the appointment of Donald Lorne Whittaker as executor and trustee of the Cultus Lake property