McCarthy v. McCarthy

McCarthy v. McCarthy

The court held that beneficiaries are entitled to documents and an accounting relating to administration of Joseph's estate; accordingly the court ordered production of correspondence and records relating to the estate (March 2, 2012 to date excluding materials relating to S162223), ordered an accounting by past trustees from July 9, 2014 to present pursuant to s.99 Trustee Act, and (by consent) approved replacement of Daniel with CrossonVoyer Trust Company Inc. as executor/trustee. Objections that the documents were sought for a collateral purpose and that privilege barred disclosure were rejected on the record.

Citation
2017 BCSC 1047
Parties
Petitioner: Agnes Sylveria Mary McCarthy; Respondent / Executor and Successor Trustee: Daniel Timothy McCarthy; Litigation Guardian for Daniel Timothy Mc Carthy: Joan Elizabeth McCarthy; Interested Party / Plaintiff in Related Action S135555: Veryle Donna Austin; Proposed Independent Trustee (by Consent): CrossonVoyer Trust Company Inc.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
31 May 2017
Procedural Posture
Estate Administration Petition / Related Civil Claim / Oral Ruling in Chambers on Petition (appointment/accounting/production)
Outcome
Petition granted in part: orders made for production of estate administration documents and for an accounting; appointment of CrossonVoyer Trust Company Inc. as successor trustee by consent; costs awarded to petitioner with limitations.
Legal Topics
Appointment of Trustee, Removal of Executor, Accounting by Trustee, Production of Documents, Solicitor Client Privilege in Trust Context, Litigation Guardianship, Constructive Trust, Unjust Enrichment
Source Language
English
Trusts and Estates Probate Civil Procedure Equity Appointment of Trustee Removal of Executor Accounting by Trustee Production of Documents +4 more

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Parties

Agnes Sylveria Mary McCarthy

Petitioner

Daniel Timothy McCarthy

Respondent / Executor and Successor Trustee

Joan Elizabeth McCarthy

Litigation Guardian for Daniel Timothy Mc Carthy

Veryle Donna Austin

Interested Party / Plaintiff in Related Action S135555

CrossonVoyer Trust Company Inc.

Proposed Independent Trustee (by Consent)

Procedural Posture

Estate Administration Petition / Related Civil Claim / Oral Ruling in Chambers on Petition (appointment/accounting/production)

Legal Issues

  1. 1 Whether Daniel should be removed as executor and successor trustee due to incapacity
  2. 2 Whether an independent trustee should be appointed (CrossonVoyer)
  3. 3 Whether the trustee must produce correspondence and records related to administration of Joseph's estate (excluding specific litigation materials)

Ratio Decidendi

The court held that beneficiaries are entitled to documents and an accounting relating to administration of Joseph's estate; accordingly the court ordered production of correspondence and records relating to the estate (March 2, 2012 to date excluding materials relating to S162223), ordered an accounting by past trustees from July 9, 2014 to present pursuant to s.99 Trustee Act, and (by consent) approved replacement of Daniel with CrossonVoyer Trust Company Inc. as executor/trustee. Objections that the documents were sought for a collateral purpose and that privilege barred disclosure were rejected on the record.

Court Disposition

Petition granted in part: orders made for production of estate administration documents and for an accounting; appointment of CrossonVoyer Trust Company Inc. as successor trustee by consent; costs awarded to petitioner with limitations.

Orders

  • CrossonVoyer Trust Company Inc. appointed as executor and trustee of Joseph's estate (by consent) and Daniel McCarthy removed in that capacity
  • Trustee of Joseph's estate to produce all correspondence, memoranda, notes, telephone memoranda and emails in paper and electronic format relating to administration of Joseph's estate from March 2, 2012 to date, excluding materials relating to action S162223