Chiu Estate (Re)

2025 BCSC 2196 Chiu Estate (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chiu Estate (Re), 2025 BCSC 2196 Date: 20251105 Docket: P250694 Registry: Vancouver In the Matter of the Estate of Shuk Ying Chiu, Deceased Before: The Honourable Madam Justice Francis Reasons for Judgment Counsel for the Petitioner Nonnie Chiu: L. McLeod Counsel for the Respondent Ladia Li : G.T. Behan Place and Dates of Hearing: Vancouver, B.C. September 4 and 5, 2025 Place and Date of Judgment: Vancouver, B.C. November 5, 2025 Table of Contents Introduction.. 3 Background Facts. 3 Issues. 6 Issue 1: Conflict of Interest. 6 Legal Authorities on Conflicts of Interest 6 Analysis. 10 Issue 2: Section 151 of WESA.. 11 Legal Authorities on s. 151 as a Substitute for the Removal of an Executor 11 Analysis. 13 Issue 3: The Appropriate Administrator.. 15 Conclusion.. 18 Introduction [1] In this petition, an estate beneficiary seeks an order passing over both the named executor and the alternate executor under her mother's will. She submits that they both are in a disabling conflict of interest. Conflicts of interest have long been a basis for passing over or removing personal representatives under our common law. However, the respondent executor in this case submits that, to the extent that she is in a conflict, s. 151 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], provides the preferable mechanism for dealing

with any conflict she faces. Section 151 allows a specified person to seek leave of the court to commence a claim on behalf of the estate where the personal representative has refused to do so. As such, in this petition the Court was asked to grapple with the question of whether, and to what extent, s. 151 of WESA changed the common law relating to conflicts of interests in estate administration. Background Facts [2] Shuk Ying Chiu (the "Deceased") died on September 30, 2024, leaving a will dated March 27, 2015 (the "Will"). She was survived by her five children: Ladia Li, Nonnie Chiu, Eddie Chiu, Buddy Chiu, and Eli Chiu. Ivan Chiu is the son of Eddie Chiu and grandson of the Deceased. Because the parties mostly share the same last name, I will refer to them by their first names in these reasons for judgment. I mean no disrespect in doing so. [3] The Will appoints Ladia as executor of the Will and trustee of the Deceased's estate. If Ladia is unable or unwilling to act as executor of the Will, Bensen Li, Ladia's husband, is the alternate named executor. The Will divides the residue of the estate amongst the Deceased's five children in equal shares. [4] Unfortunately, the last years of the Deceased's life were marked by conflict amongst her adult children. Much of that conflict centred around Ladia and Bensen's care of the Deceased and Ladia's siblings' belief that Ladia and

Bensen financially exploited the Deceased. Ladia, who was appointed attorney under an enduring power of attorney ("POA") executed by the Deceased in March 2015, appears to have used the Deceased's funds for her and Bensen's benefit. Ladia and Bensen also lived in the Deceased's home from 2017 until March 2024, despite the fact that the Deceased never moved back into the home after a lengthy hospital stay in the fall of 2019. [5] In January 2021, the Public Guardian and Trustee ("PGT") commenced an investigation on behalf of the Deceased and sought an accounting from Ladia. Upon reviewing Ladia's accounts as attorney for the Deceased, the PGT raised a number of concerns, particularly related to a number of transactions in which Ladia and Bensen received a financial benefit to the detriment of the Deceased. [6] Ultimately, in March 2022, the PGT filed a petition for committeeship of the person and estate of the Deceased. The PGT's petition was consented to and the PGT was appointed committee of the person and estate of the Deceased. [7] In the Affidavit of Kindred and Fortune filed with the PGT's committeeship application on March 10, 2022, Monica Girn, a regional consultant for the PGT, outlined the following concerns about Ladia's management of her mother's affairs under the POA: (1) approximately $64,000 in a period of four months was used from the Deceased's funds to directly

benefit Ladia and Bensen; (2) approximately $875 per month was being spent from the Deceased's funds on groceries despite the Deceased living in long term care and having no need for groceries; (3) the Deceased's funds were being used for utilities, phone, and cable at her home where Ladia and Bensen lived despite the Deceased no longer living there; (4) Ladia and Bensen were living in the Deceased's home and did not pay any rent; (5) the Deceased was making monthly payments to Ladia allegedly for caregiving despite the Deceased living in long term care and not requiring caregiving from Ladia; and (6) the Deceased was making bonus payments to Bensen for his assistance with trading activities, totalling $53,000 (collectively, "Impugned Transactions"). [8] In the Affidavit of Kindred and Fortune, the PGT concluded that the Impugned Transactions "directly benefit Ladia and her spouse and are objectively to the financial detriment of [the Deceased]." [9] Ladia and Bensen have sworn evidence in this application in which they have sought to explain the Impugned Transactions. Ladia strongly contests the suggestion that she or Bensen improperly benefitted from her mother's money. [10] The PGT continues to be involved in the Deceased's affairs as a result of s. 24 of the Patients Property Act, R.S.B.C. 1996, c. 349 [PPA]. Section 24 of the PPA provides that on the death of a patient,

and until a representation grant is issued, the committee of a patient continues to have the rights, powers, duties, and privileges of a committee. [11] Nonnie has brought this petition seeking to have both Ladia and Bensen passed over as executors and to have herself and Ivan appointed as administrators with will annexed. In the alternative, Nonnie seeks to have McEown and Associates Ltd. ("McEown") appointed to administer the estate. [12] Ladia raises a number of issues in response. She specifically argues that the PGT's allegations against her are untested, that she has now addressed any concerns raised by the PGT, and that any claim the estate may have against her is statute barred (although the limitations argument was mostly abandoned in oral argument). Ultimately, she submits that neither she nor Bensen should be passed over as executors. In the alternative, she submits that, if they are passed over, the Canadian Imperial Bank of Commerce Trust ("CIBC Trust") should be appointed as an independent personal representative of the Deceased's estate. Issues [13] There are three central issues that inform the outcome of this application: (1) whether Ladia and Bensen are in a conflict of interest; (2) if Ladia and Bensen are in a conflict of interest, whether they should be passed over as personal representatives or whether s. 151 of WESA provides a preferable mechanism to

address the conflict; and (3) if Ladia and Bensen are to be passed over as personal representatives, whether an independent trust company should be appointed as personal representative of the Deceased's estate and, if so, which one. Issue 1: Conflict of Interest Legal Authorities on Conflicts of Interest [14] Section 158 of WESA provides the statutory authority for passing over a named executor in advance of a grant of probate: 158 (1) In this section, "pass over" means to grant probate or administration to a person who has less priority than another person to become a personal representative. (2) A person having an interest in an estate may apply to the court to remove or pass over a person otherwise entitled to be or to become a personal representative. (3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove or pass over a person otherwise entitled to be or to become a personal representative if the court considers that the personal representative or person entitled to become the personal representative should not continue in office or be granted probate or administration, including, without limitation, if the personal representative or person entitled to become the personal representative, as the case may be, (f) is (i) unable to make the decisions necessary to discharge the office of personal representative, to an extent that the

conduct of the personal representative hampers the efficient administration of the estate [emphasis added.] [15] In addition to the statutory authority provided by s. 158, the court has authority under its inherent jurisdiction to remove or pass over a personal representative of an estate: Mardesic v. Vukovich Estate (1988), 30 B.C.L.R. (2d) 170 at 174, 1988 CanLII 3125 (B.C.S.C.). [16] In Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37, Chief Justice Hinkson considered the principles that should guide the court's discretion in considering whether to remove a trustee, citing with approval the decision of the Ontario Superior Court of Justice in Haines v. Haines, 2012 ONSC 1816 at para. 10: (1) the court will not lightly interfere with the testator's choice of estate trustee; (2) clear evidence of necessity is required; (3) the court's main consideration is the welfare of the beneficiaries; and (4) the estate trustee's acts or omissions must be of such a nature as to endanger the administration of the trust. [17] In exercising its discretion to remove or pass over an executor, the court's main consideration is the welfare of the beneficiaries: Parker, at para. 38, citing Miles v. Vince, 2014 BCCA 289 at para.

84. This overriding principle has deep roots in our common law. In Letterstedt v. Broers, L.R. 9 App. Cas. 371 (J.C.P.C.) at 387, [1884] UKPC 1, a case decided more than 140 years ago, the Lords noted both the overriding principle of the welfare of beneficiaries and the fact specific nature of the inquiry: In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on details often of great-nicety. But they proceed to look carefully into the circumstances of the case. [18] These principles were discussed and adopted by our Court of Appeal in Conroy v. Stokes, [1952] 4 D.L.R. 124 at 126-127, 1952 CanLII 227 (B.C.C.A.). [19] Because of its capacity to impinge on the best interests of the beneficiaries, an executor's conflict of interest, real or perceived, has long been held to be a basis for passing over or removing a personal representative, although each case must turn on its own facts: Thomasson Estate (Re), 2011 BCSC 481 at paras. 25-26. [20] In Thomasson Estate, Madam Justice Gerow considered an application to pass over a named executor in circumstances where the estate had a potential interest

in property in the executor's personal name. She held: [29] In the circumstances of this case, it is my opinion that there is a perceived conflict of interest between Alex in his role as an executor and his interest in his personal capacity. If an action is instituted by the executors as a result of the transfer of the Property, it would be against Alex. In my opinion, Alex, in his capacity as executor, cannot attack the transfer of the Property to himself while at the same time maintaining, in his personal capacity, that the transfer of the Property was proper. By making such a finding I am not prejudging the case. I am simply of the view that, in the circumstances of this case, if an action is commenced as a result of the enquiries into the transfer, Alex cannot conscientiously act as a plaintiff in his capacity as an executor in a case where he will be the defendant. [21] Similarly, in Ching Estate (Re), 2016 BCSC 1111, Justice Affleck was asked to consider whether an executor--who was also a defendant in an "asset recovery action" in which a beneficiary, on behalf of the estate, sought to recover estate assets from the executor--had a "disabling conflict of interest" that precluded her from acting as executor. The conflict was between the named executor's personal interest in retaining assets for herself and a personal representative's duty to maximize the value of estate assets. Justice Affleck noted that even a perceived conflict of interest between an executor's personal interests and her obligation to act in the best interests of the beneficiaries may cause the court to intervene to "avoid even the appearance of conflict": at para.

22. He concluded that the executor in that case could not "perform her duty to claim assets for the estate while asserting that the same assets belong to her": at para.

23. As such, he ordered that the executor must be removed. [22] Similar reasoning was employed by Justice Kirchner in Jury v. Rogodzinksi, 2021 BCSC 2441 at para. 65, and by Justice Gibb-Carsley in Rawji Estate (Re), 2023 BCSC 1652 at para. 62. [23] In Burke v Burke, 2019 BCSC 383, the deceased died leaving a will that named her granddaughter as executor of her will. Prior to her death, the deceased had gratuitously transferred an interest in real property to the same granddaughter. The deceased's daughter commenced an action to vary the deceased's will under s. 60 of WESA. In the context of the wills variation action, the daughter asserted that the executor granddaughter held the property on a resulting trust for the estate. In a separate petition, another beneficiary applied to have the executor removed, claiming that she was in a conflict of interest because her personal interest in retaining the property for herself was in conflict with the estate's interest in obtaining the property on a resulting trust. [24] In Burke, Justice Milman agreed with the petitioner that the executor faced "at least a potential conflict of interest" because her duty as executor was to maximize the value of the estate but her personal interest lay in resisting any attempt to bring the property into the estate: at para.

41. However, he noted that the pending litigation in which the conflict of interest was invoked, an action to vary the will, was an action in which the executor was required to maintain neutrality: at para.

45. Justice Milman did not see this as a case where the executor would be asked to sue herself because the executor was merely a defendant in an action in which her position, by necessity, was neutral. In this way, he found the facts of the case distinguishable from Ching and other cases in which executors were passed over or removed for a conflict of interest: at paras. 45-51. [25] In Burke, Milman J. grounded his reasoning in the fact that the estate's claim to real property was asserted in the context of a wills variation action. It was the prescribed neutrality of an executor named as a defendant in a wills variation claim that saved the executor in that case from being in a disabling conflict. She would not, in the context of the variation claim, "be called upon to sue herself in her personal capacity on behalf of the estate": at para.

51. In my view, this is the factor that distinguishes the reasoning in Burke from the reasoning in Jury, Ching, and other similar cases in which an executor faces the conflict of interest that arises when the executor holds property to which the estate may have a claim. As a result, I do not agree that Burke relaxes the long-standing principle that an executor will be unable to properly discharge their duties as personal representative if they are required to choose between the welfare of the beneficiaries and their own personal interest. It simply posits that such a conflict of interest may be ameliorated if it arises in the context of an action in which the executor must be neutral. Analysis [26] While Nonnie has raised a number of concerns about Ladia, I find that Ladia and Bensen's conflict of interest is determinative of the issues I have to decide. [27] The conflict in this case is not speculative, nor is it a spurious conflict manufactured by Nonnie to ensure her sister cannot become executor. The PGT was appointed committee in 2022 after concluding that Ladia had mismanaged the finances of the Deceased. In its 2021 investigation, the PGT identified a number of areas in which the estate would have a potential claim against Ladia. In order to protect the financial interests of the estate, the executor must investigate each of these claims. Neither Ladia nor Bensen can do

so objectively when they are the subject of the investigations. [28] In her affidavits filed in this petition, Ladia has provided explanations for a number of the Impugned Transactions. It is neither necessary nor appropriate on this application for me to engage in an extensive review of the conflicting evidence about the propriety of each of the Impugned Transactions. The PGT, an independent government agency, has raised concerns with respect to the Impugned Transactions. In my view, that is sufficient to require the personal representative to investigate them. By necessity, this investigation will include a consideration of whether steps need to be taken on the estate's behalf to recover some of the funds that were received by Ladia and Bensen in the Impugned Transactions. It is obvious that this places both Ladia and Bensen in a serious conflict of interest. Issue 2: Section 151 of WESA [29] Ladia argues that even if she is in a conflict of interest, she should not be passed over as executor, nor should Bensen. Instead, she submits that Nonnie should apply under s. 151 of WESA for leave to commence a claim on behalf of the estate to deal with the Impugned Transactions. Legal Authorities on s. 151 as a Substitute for the Removal of an Executor [30] In Burke, Milman J. discussed the possibility that s. 151 may provide a means, short of removal, for dealing with an executor's

conflict of interest. While declining to remove the executor in that case, he held that it would be open for the petitioner to seek leave to bring an action under s. 151 of WESA, which could allow the estate's resulting trust claim to proceed without creating a permanent, disqualifying conflict for the executor: at paras. 55-57. [31] In this regard, the Court in Burke relied on Werner v. McLean, 2016 BCSC 1510. In Werner, an intestate successor applied to remove her brother as the personal representative of their father's estate. During his lifetime, the father had purchased a property with the brother and it was registered in both of their names as joint tenants. The sister challenged the brother's right of survivorship in the property after the father's death, claiming that her brother held the property on a resulting trust for the estate. She argued this dispute placed the brother in a conflict of interest. Justice Thompson declined to remove the brother as administrator, noting that not all cases of conflict or misconduct result in removal: at para.

9. Instead, he granted the alternative relief sought by the sister, which was leave under s. 151 of WESA to commence proceedings on behalf of the personal representative to seek to recover the estate's interest in the property. [32] In Jury, Kirchner J. extensively canvassed the recent jurisprudence on executors and conflicts of interest. In that case, three beneficiaries sought to pass over a named executor on the basis that she had an irreconcilable conflict of interest between her duties as executor and her personal interest in a property that the deceased had transferred to her prior to his death. The beneficiaries asserted that the property was held on a resulting trust for the estate, although no litigation to assert that claim had yet been commenced. Justice Kirchner expressly rejected the respondent's argument that it was incumbent on the applicants to bring an application under s. 151 if they wanted to challenge an inter vivos transfer to an executor: at para.

63. On the facts of the case, he held that passing over of the executor was warranted. [33] In Eftekhari v. Eftekhari, 2025 BCSC 942, Justice Majawa considered an application to remove one executor and pass over another and to appoint a professional trust company as personal representative in their place. Like in Werner, the applicants in Eftekhari sought, as alternative relief, leave under s. 151 to commence a claim on behalf of the estate. While there were three alleged conflicts of interest at issue in Eftekhari, only two were held by Majawa J. to be disabling conflicts. The alleged conflict that Majawa J. held was not disabling was the petitioner's stated intent to sue the executors regarding estate assets that she said had fallen into the personal representatives' hands. In finding this not to be a disabling conflict, Majawa J. noted a concern that was also raised by Milman J. in Burke: if a potential claim by the estate against the executor is always disabling, "any beneficiary could manufacture a conflict and have the executors disqualified simply by filing a lawsuit in which the estate assets are disputed": Eftekhari at para. 36; see Burke at para.

56. Justice Majawa went on to state that a claim against the executor with respect to the disputed estate assets was better pursued by way of an application under s. 151: at para. 36. [34] I agree with Majawa J. that, on an application to pass over or remove a personal representative on the basis of a conflict, there must be evidence of a viable claim, or, at minimum, a claim that requires investigation, against the personal representative. Spurious or manufactured claims of conflict should not be enough to disqualify an executor. As such, some review of the nature of the potential claim and whether there is indeed a conflict between the personal interests of the executor and the interests of the beneficiaries will always be required. [35] However, once such a conflict of interest is established, it will be difficult for an executor to demonstrate that they are capable of preserving the best interests of the beneficiaries when to do so may mean compromising their own personal interests. In order to protect the interests of the beneficiaries, it may be necessary for such an executor to be passed over or removed. Analysis [36] Ladia argues that, since the advent of WESA, s. 151 provides the appropriate mechanism for dealing with executors facing conflicts of interest. She relies on Burke, Werner, and Eftekhari for the proposition that, where an executor's conflict of interest can

be isolated to a single discrete issue and the executor is otherwise capable of discharging their duties, removal is not justified. Instead, unhappy beneficiaries should apply under s. 151 for leave to pursue their claim on behalf of the estate. [37] I do not read Burke, Werner, or Eftekhari as prescribing an application under s. 151 of WESA as the only, or even the preferable, means of dealing with an executor who faces a disabling conflict of interest. Section 151 can be a helpful mechanism where, for example, the beneficiaries wish for the executor to pursue a claim and the executor refuses. It allows the court to screen out claims that may appear on their face to be for the benefit of the estate but in fact are not worth pursuing for reasons of merit or proportionality. However, the assertion that s. 151 is the only means of addressing a conflict of interest is inconsistent with the clear line of authority in our common law, dating back more than one hundred years, which states that a named executor must not accept the office of executor if they find themselves in a position where they are unable to put the interests of the beneficiaries first. [38] Similar arguments were made before me in Soo Estate, 2023 BCSC 762. In that case I held: [25] Counsel for Rick submits that the conflict of interest can be ameliorated by way of s. 151 of WESA. Section 151 gives a beneficiary,

wills variation claimant, or intestate successor the right to seek leave to commence proceedings on behalf of the estate, often in circumstances where the personal representative is in a conflict of interest with respect to a potential claim and therefore unlikely to commence proceedings to pursue the estate's interests. [26] I cannot agree with counsel for Rick that the advent of s. 151 has removed the requirement that executors be free from conflicts of interest with respect to the estate they seek to administer. An executor is a fiduciary, and like any fiduciary, must be in a position where they can protect the best interests of the beneficiaries without the interference of their own personal interests. [39] Section 151 of WESA is remedial. It does not take away rights that exist at common law. The common law that imposes on executors a duty to put the interests of the estate above their own personal interests has not been abrogated by s. 151. [40] I am supported in this view by the commentary to the draft legislation in the British Columbia Law Institute ("BCLI") report from which WESA was born. It set out the following policy justification for including a provision such as s. 151 in the new legislation: Comment: Section [151] is a new provision intended to overcome a gap in the present law which does not permit a beneficiary or an intestate successor to bring or defend

proceedings on behalf of the estate if the personal representative refuses or is unable to do so. It may not be convenient or useful in all cases to remove the personal representative and substitute another under Division 7. For example, a family may be content for the personal representative to continue in all other respects except with regard to the matter in respect of which the personal representative refuses to take proceedings. This section would permit a beneficiary or an intestate successor to seek approval of the court to take proceedings in the personal representative's name to protect the interests of the estate and those beneficially interested in it if the personal representative cannot or cannot be persuaded to do so. The procedure contemplated by this section is similar to the derivative action in company law in which a shareholder or director may be allowed to bring or defend proceedings in the name and on behalf of the company under certain circumstances. British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No. 45 (Vancouver: 2006) at 250. [41] In my view, s. 151 provides beneficiaries and other specified persons with a mechanism, as an alternative to removal, for resolving a conflict of interest, in circumstances in which the estate has a claim that the executor fails to pursue, despite it being in the best

interests of the beneficiaries of the estate to do so. As the authors of the BCLI report noted, there will be cases where the beneficiaries find it preferable to seek leave under s. 151 to commence a claim on behalf of an estate rather than remove the personal representative where the personal representative is in a conflict of interest. One can imagine numerous scenarios where an application under s. 151 would be the path chosen. For example, if the estate administration is almost complete at the time the claim arises such that removal of the personal representative would be impractical. Alternatively, a conflict could arise early in the estate administration but be isolated to a single discrete issue such that the beneficiaries are comfortable with the personal representative continuing in their role in all respects other than the claim being pursued under s. 151. [42] The point is, s. 151 does not take away the right of a beneficiary to seek to remove an executor who is in a disabling conflict of interest. Rather, it provides what is sometimes a more convenient and less expensive path to pursuing claims on behalf of the estate where it is in the best interests of the estate to do so. Section 151 does not, and could not, derogate from the common law principle that an executor cannot act in the best interests of the estate beneficiaries if their personal interests are out of

line with their duty to maximize the value of the estate. [43] It remains open to Nonnie, or any other specified person, to apply under s. 151 to pursue a claim on the estate's behalf. However, Nonnie has chosen another route in this petition. She is entitled to do so. [44] As a result, I order that Ladia and Bensen should be passed over as personal representatives of the Deceased's estate. Issue 3: The Appropriate Administrator [45] Pursuant to s. 159 of WESA, if the court passes over a personal representative, it must then appoint someone in their place. [46] Nonnie seeks an order that she and Ivan be appointed as administrators with will annexed of the Deceased's estate. In the alternative, she seeks an order that McEown be appointed administrator with will annexed. [47] I do not think Nonnie is an appropriate replacement executor. There is a high degree of animosity amongst the siblings and the best interests of the estate will be better protected by having an independent party in place who can objectively assess any claims the estate may have against Ladia or any other person. [48] Nonnie's alternative position is that McEown should be appointed by the Court as the substitute personal representative. The principal of McEown, John McEown, is primarily an insolvency professional who has worked as an insolvency trustee, receiver, and monitor in various insolvency proceedings.

His professional profile notes that he has recently been engaged as court appointed administrator of several estates of deceased individuals. [49] Mr. McEown provided a letter of engagement that sets out the anticipated steps he would take in the administration of the estate, should he be appointed. He set out his hourly rate at $575 an hour as well as the somewhat lower hourly rates of the other members of his team. He advised that he would provide a preliminary estimate of the cost of reviewing estate records and projected litigation costs in due course. [50] Ladia takes the position that, if she and Bensen are passed over, CIBC Trust should be appointed as administrator with will annexed. She has provided information from CIBC Trust, including an estate administration compensation schedule. CIBC Trust proposes to take a fee of 4.5 percent on the first $1 million in the estate, 3 percent on the next $1 million, 2 percent on the next $2 million, and 1 percent on any balance over $4 million. [51] As Mr. McEown charges on an hourly basis whereas CIBC Trust uses the more conventional approach under the Trustee Act, R.S.B.C. 1996, c. 464, of charging executor fees as a percentage of the value of the estate, it is difficult to compare the costs of the two proposed trustees. Further, there is no current evidence about the value of the Deceased's estate. The March 2022 Affidavit of

Kindred and Fortune estimated the Deceased's estate at just under $5.5 million. If this were the value from which CIBC Trust's fees were calculated, they would be $130,000. [52] In my view, given the acrimonious history in this family and the consequent high likelihood that, irrespective of any claim against Ladia, this will be a very time-consuming estate to administer, some certainty on fees is desirable. Given the events of the last several years, if the independent administrator is simply charging an hourly rate without any cap, there is a high risk of the fees spiralling out of control. [53] Further, while I have no doubt that Mr. McEown possesses the skills and experience required to manage this estate administration, the deep well of experience that CIBC Trust has in managing high-conflict estate administration makes it a more desirable choice. [54] In all the circumstances, it is my view that CIBC Trust is the preferable independent trustee. I therefore order that they be appointed as administrator with will annexed pursuant to s. 159 of WESA. [55] There are a number of terms that CIBC Trust asks to have included in the order if it is appointed. These terms were included in Ladia's written submissions. However, I did not hear any oral submissions on them and I am uncertain whether the precise terms are agreeable to Nonnie. The parties may consent to the terms of

appointment set out at paragraph 19.4 of Ladia's written submissions and include those terms as part of the order. If they are unable to consent on the precise terms to be included, they may arrange a short hearing before me to speak to same. Conclusion [56] In summary, I find that Ladia and Bensen are in a serious conflict of interest. I therefore order that they be passed over as personal representatives of the Deceased's estate pursuant to s. 158 of WESA. [57] Further, I order that CIBC Trust be appointed as the substitute personal representative of the Deceased's estate with will annexed pursuant to s. 159 of WESA. The parties may consent to the terms of appointment set out at paragraph 19.4 of Ladia's written submissions and include those terms as part of the order. If unable to consent, they may arrange to appear before me to set the terms of the order. [58] Finally, the parties did not have an opportunity to make submissions about costs. Should they be unable to agree on costs, they may make arrangements with Supreme Court Scheduling to set down a 9:00 am hearing before me to address the costs consequences of this petition. "Francis J."