Collett Estate (Re)

2009 BCSC 1800 Collette Estate (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Collett Estate (Re), 2009 BCSC 1800 Date: 20091230 Docket: 21592 Registry: Kamloops Between: Re: The Estate of John Allan Collett and Section 88 of the Trustee Act R.S.B.C. 1979 C. 414 Before: The Honourable Mr. Justice Gaul Reasons for Judgment Counsel for the Applicant, The Public Guardian and Trustee: R.W. McDiarmid, Q.C. Robert Baird, Judicial Trustee: Paula Collett, beneficiary: Caroline Pound, (via telephone) beneficiary: Teresa Greig, (via telephone) beneficiary: Appearing on his own behalf Appearing on her own behalf Appearing on her own behalf Appearing on her own behalf Place and Date of Hearing: Kamloops, B.C. April 15, 2009 Place and Date of Judgment: Kamloops, B.C. December 30, 2009 [1] John Allan Collett, the testator, was a prominent and wealthy resident of Merritt, British Columbia and for many years he was the mayor of that community. Perhaps because there were multi-generations of John Colletts, the testator was also known to some friends and family members as Allan Collett. To avoid any confusion, I will simply refer to testator as "Mr. Collett". [2] By the time of his death, Mr. Collett had amassed a sizeable estate (the "Estate"). The path towards settling the Estate has been a long, arduous and, at times, legally complex one. It has also likely been a trying and painful one for all of the Collett family. I have no doubt that the parties to these proceedings hope that this is the final chapter of the Collett Estate litigation saga.

BACKGROUND FACTS [3] Mr. Collett died on 9 February 1992. He was survived by his: · Wife, Gloria Edith Collett ("Mrs. Collett"); · Two children: 1. John Collett, Jr. ("John Jr.") and 2. Caroline Pound ("Caroline"); · Five grandchildren: o John Jr.'s three children: 1. Paula Collett, 2. Michael Collett, and 3. Johnny Collett ("Johnny"); and o Caroline's two children: 4. Teresa Pound ("Teresa") and 5. Anne Pound ("Anne"), and · Two great-grandchildren: o Johnny's two children: 1. Jennifer Collins ("Jennifer") and 2. David Collins ("David"). [4] Mr. Collett's Last Will and Testament, executed on 9 October 1991 (the "Will"), appointed William Grayson, a chartered accountant, Mrs. Collett and Caroline as executors and trustees of his Estate (the "Trustees"). The Will appointed a fourth executor and trustee; however, for reasons that are of no consequence to the issues before me, that person renounced his appointment. [5] The Will was probated on 1 September 1992 and, pursuant to its terms, John Jr. received Mr. Collett's shares in Collett Ranch Ltd. and the balance of the Estate went to Mrs. Collett, in trust, for the remainder of her life. [6] The terms of the Will also provided the Trustees with the absolute discretion to use whatever part or parts of the trust capital for Mrs. Collett's benefit. The Will further provided that upon Mrs. Collett's death, the residue of the Estate

would be divided in two, with one half going to Caroline or her issue if she predeceased her mother and the other half going to Teresa, Anne, Johnny, Paula Collett and Michael Collett (the "Grandchildren") in equal shares. Paragraph 3, sub-paragraph (j) of the Will read as follows: To divide the residue of my estate then remaining into two (2) equal shares and to give absolutely one (1) such equal share as follows: (a) CAROLINE GLORIA POUND, provided that if she shall then be dead and if any issue of such deceased child shall be living, such deceased child of mine shall be considered alive for the purpose of such division and her share shall be divided amount the issue of such deceased child in equal share per stirpes, (b) to divide the remaining equal share among my grandchildren, namely TERESA POUND, ANNE POUND, PAULA COLLETT, JOHNNY COLLETT and MICHAEL COLLETT, who survive me. [7] Not content with his share of the Estate, John Jr. initiated legal proceedings under the Wills Variation Act, R.S.B.C. 1979, c. 435, to amend the terms of the Will. That action eventually led to the Will being rewritten and although it is not indicated on the resulting court order, it would appear that the order was made by consent of all of the parties. [8] In the spring of 1993, one of the Estate's major assets held in trust for Mrs. Collett was sold. At Mrs. Collett's request and pursuant to

their discretionary powers to encroach upon the capital of the Estate for her benefit, the Trustees withdrew $1,000,000 from the trust capital. However, the funds from this encroachment did not go to Mrs. Collett; instead $250,000 went to Caroline, $250,000 went to John Jr. and $100,000 went to each of the five Grandchildren (the "1993 Distribution"). [9] By way of letter dated 11 January 1994 addressed to Mr. Grayson, Michael Collett asked the Trustees to give him a portion of his anticipated share of the Estate: I would like to recieve (sic) 60,000 (sixty-thousand) as an advance on my share of my grandfather's estate. [10] In addition to Michael Collett's signature, the said letter also had Caroline's signature in her capacity as executrix of the Estate as well as Mrs. Collett's signature in the same capacity. I take it Caroline and Mrs. Collett endorsed the letter as a sign of their approval of the loan. [11] Later in January 1994, the Estate provided Michael Collett with a $60,000 loan (the "1994 Loan"). At the same time, the Estate also loaned $150,000 to Caroline and $60,000 to each of her children, Anne and Teresa. Paula Collett received a $60,000 loan at this time as well. John Jr. and Johnny did not apply for loans and consequently received nothing from the Estate at that time. [12] The written agreement that documented the 1994 Loan named the Estate as the "Lender"

and Michael Collett as the "Borrower" (the "Loan Agreement"). The preamble to the Loan Agreement included the following notation: The Borrower is a residual beneficiary of the Estate of Allan J. Collett and is expected to ultimately inherit a sum in excess of One Hundred and Fifty Thousand ($150,000) Dollars. [13] The Loan Agreement set the rate of interest payable on the loan at 7% compounded annually and although it was silent with respect to any repayment schedule, it did include the following term: The full amount of principal and interest will become a charge against the Borrower's remainder interest in the Estate of Allan J. Collett and shall be deducted from any distribution made by the Estate to the remainder beneficiaries. [14] Johnny died on 16 February 1994 and, approximately eight months later, Michael died on 5 November 1994. [15] On 9 January 1996, John Jr. was granted Probate of Michael Collett's estate and in doing so he became its administrator. [16] According to the affidavit dated 26 January 1995 sworn by John Jr., Michael Collett's estate had assets of approximately $51,000 and liabilities of approximately $71,000. Worthy of note is the fact that the Schedule of Assets, Liabilities and Distribution attached as an exhibit to the affidavit lists the 1994 Loan from the Estate as an unpaid liability of Michael Collett's estate. [17] When Michael Collett died,

his daughter was en ventre sa mère. The child, Paige Michaela Collett Arduini ("Paige") was born on 26 May 1995. [18] Mrs. Collett died on 25 June 1998. This was a significant date for the Collett family and an important one for the purposes of administering Mr. Collett's Estate. In accordance with the terms of the Will, as revised in 1993, the identity of the beneficiaries could now be determined as the final triggering event, Mrs. Collett's death, had occurred. [19] On or around 31July 1998, the Trustees purported to make a distribution of $907,195 to the Estate's beneficiaries (the "1998 Distribution"). Of that amount, $90,719.50 was allocated to Michael Collett's estate. However, $80,719.50 was held-back as a "contra" in what was said to be a repayment of the 1994 Loan plus interest (the "1998 Contra"). As a result, $10,000 was paid to the Public Guardian and Trustee (the "Public Guardian"), in trust for Paige. History of the Legal Proceedings [20] As mentioned earlier in these reasons, John Jr. launched a legal action aimed at rewriting his father's will. That action resulted in the order of Mr. Justice Hunter dated 15 February 1993 that reads, in part: (c) paragraph 3 sub-paragraph (j) shall be varied to read: "To divide the residue of my estate then remaining into two (2) equal shares and: (a) To divide one such share equally between my daughter CAROLINE GLORIA POUND,

and my son, JOHN COLLETT Junior, or, subject to the following proviso, to pay or transfer all of the said share to the survivor if only one of them is living at the death of the survivor of me and my wife, GLORIA EDITH COLLETT, PROVIDED that if either of my said children shall have predeceased the survivor of me and my said wife and if any issue of such deceased child shall be living at the death of the survivor of me and my said wife such issue shall take in equal shares per stirpes the portion of the said share to which such deceased child of mine would have been entitled if then living. (b) To divide the other such share in equal shares per capita among such of my grandchildren, namely, TERESA POUND, ANNE POUND, PAULA COLLETT, JOHNNY COLLETT and MICHAEL COLLETT, as shall be living at the death of the survivor of me and my said wife, PROVIDED that if any of my said grandchildren shall have predeceased the survivor of me and my said wife and if any issue of such deceased grandchild are living at the death of the survivor of me and my said wife, such issue shall take in equal shares per stirpes the share of the residue of my estate to which such deceased grandchild would have been entitled if then living" [21] The present proceedings were commenced in July 1994 by the Trustees. The dispute originally related to John Jr.'s management and disposition of what were claimed to be

Estate assets; however over time the nature and scope of the dispute grew to incorporate a number of additional issues. In March 1995, with the consent of all of the parties, a trial date was set for September 1999. [22] In August 1999, a month prior to trial, the parties reached an agreement on many, but not all, of the issues in dispute. The agreement was recorded in Minutes of Settlement (the "Minutes of Settlement") that contained the following:

WHEREAS A. An Order was made by the Honourable Mr. Justice Davies on the 13th day of March 1995 in relation to this estate and the issues for a trial presently scheduled for September 13th, 1999; B. Other issues have arisen with regard to the estate and the parties have now settled the issues ordered to be tried by Mr. Justice Davies and have settled some of the other issues which have arisen; (Emphasis added) C. All the beneficiaries wish to set out in these Minutes of Settlement their agreement with regard to the issues which have been settled; (Emphasis added) NOW THEREFORE IN CONSIDERATION OF the premises and the provisions hereinafter set out the parties agree as follows: [...] 21. The parties have not agreed on the issue of whether the estate of Michael Collett has been underpaid. This entitlement issue will be determined by the Court or by agreement between the parties. [23] On 30 August 1999, Mr. Justice Blair approved the terms of the Minutes of Settlement and incorporated them into a consent order that included the following: THIS COURT ORDERS THAT, save an except as specifically varied by this Order, and subject to the right of the PUBLIC TRUSTEE to review any and all payments made or to be made to CAROLINE POUND pursuant to paragraphs 9 and 17 of the Minutes of Settlement, the annual estate accounts prepared by the executors up to and including the accounts of

January 2, 1999 are approved. [24] Of particular importance to the present application are the following additional terms of Blair, J.'s order: THIS COURT FURTHER ORDERS AND BY CONSENT that the Minutes of Settlement filed in support of this application are approved as follows: 21. The issue of whether the state of MICHAEL COLLETT has been underpaid will be determined by the Court or by agreement between the parties. [...] THIS COURT FURTHER ORDERS AND BY CONSENT THAT the parties shall be at liberty to apply pursuant to Rules 33 or 18A of the Rules of Court for a determination of the remaining outstanding issues in relation to the estate; THIS COURT FURTHER ORDERS AND BY CONSENT THAT counsel for the PUBLIC TRUSTEE shall be at liberty to conduct a discovery of CAROLINE POUND; THIS COURT FURTHER ORDERS THAT any party shall be at liberty to apply for direction with regard to the form or content of this Order. [25] On 18 October 2000, a special case pursuant to Rule 33 of the Rules of Court came on for hearing before Mr. Justice Powers. The issues before the Court included the following: 1. Whether the issue of Michael Collett and Johnny Collett, deceased grandchildren of the testator, have been underpaid and in particular: (a) Was the distribution of $1,000,000 made in April 1993 valid or ought the estate to account to the issue of the deceased grandchildren for that distribution,

and if so, how much ought the issue to receive? (b) Was the loan made to Michael Collett in January 1994 valid or ought the estate to account to Paige Arduini (the sole surviving issue of Michael Collett) for that loan, and if so, how much should Paige Arduini receive? [26] Mr. Justice Powers determined that the 1993 Distribution of $1,000,000 was an improper exercise of the Trustees' discretion and consequently ordered an accounting in relation to those funds. The Court also held that the entitlement of Paige could not be reduced by the amount her father owed the Estate on the 1994 Loan. [27] In his reasons for judgment (2000 BCSC 1570), Powers, J. observed: [23] Mr. Dolder, counsel for the estate and the two surviving executors, William Grayson and Caroline, argued that the consent order of August 30, 1999, approved the accounts as specified and therefore any issues raised in this special case which have been determined by that order are res judicata. In particular, the issue of the distribution of the $1 million. I expressed my concern that whether the matter was res judicata could not be determined on the agreed statement of facts. The parties did wish a decision on the issues as stated in the special case and therefore I have proceeded without any consideration as to whether or not an argument might be made that the order of August 30, 1999, makes those issues res

judicata. [...] [41] I find that in fact the advance of $1 million was not for the use or benefit of Gloria, but was for the use and benefit of the people who actually received those monies. This is so even if some of the beneficiaries may have provided her with assistance of some sort. I also conclude that the executors have an absolute discretion to determine whether the encroachment is advisable. In exercising that discretion they are still bound to exercise that discretion with care, considering the user benefit of the life beneficiary and the interests of the contingent residual beneficiaries. They were not careful in determining who the potential beneficiaries were or might be, nor in considering how this encroachment might affect those contingent beneficiaries. Therefore I conclude that the advancement of $1 million and the distribution of that money in the manner in which it was distributed was not proper exercise of their absolute discretion provided for in the will. The Loans [42] Although loans were made to a number of people, the only loan at issue is that made to Michael Collett, and the question is whether that was valid or ought the estate to account to Paige Arduini for that loan. [43] Counsel for the estate agrees that his loan was not a loan which would have been authorized by the Trustee Act and do no not point to any authority in the will to make investments

of that nature. ...The loans to some of the other potential contingent beneficiaries are not an issue because these beneficiaries are in a position to repay those loans as part of their share of the estate. The loan to Michael, however, cannot be paid from any interest he has in the estate because he did not survive Gloria and therefore did not become entitled to any interest in the estate. The loan agreement may have given the estate a charge against Michael's remainder interest in the estate, but because Michael failed to survive Gloria, he has no remainder interest in the estate. [...] [47] Paige's entitlement to the estate cannot be reduced by the amount owing on the loan made to Michael. That loan is the responsibility of Michael's estate and is not of charge against Paige's interest in the estate. [28] The order resulting from Mr. Justice Powers' judgment reads, in part: 1. The distribution of $1,000,000 made in April 1993 was not a proper exercise of the discretion of the executors and must be accounted for; [...] 4. No determination is made in this Order as to whether or not the Order of August 30, 1999 makes the above determinations res judicata; 5. The entitlement of Paige Arduini cannot be reduced by the amount owing on the loan made to Michael Collett in January 1994 [29] On 27 November 2000, Blair J. varied his order of 30 August 1999 so that paragraph 21 of the

said order read "the issue of whether the issue of Michael Collett has been underpaid". [30] In November 2004, the British Columbia Court of Appeal heard the appeal brought by the Trustees from the October 2000 order of Powers, J. On 13 April 2005, the Court of Appeal allowed the appeal and set aside the said order (2005 BCCA 214; supplemental reasons on costs 2005 BCCA 291). [31] On 24 September 2007, Groberman, J. (as he then was) dismissed Paula Collett's application that sought to vary the 1993 order of Hunter J. that had varied the Will. In a separate order the same day, Groberman, J. directed The issue of whether the issue of Michael Collett has been underpaid, as set out in paragraph 21 of the Order of the Honourable Mr. Justice Blair made August 30, 1999 and amended November 27, 2000 be set for determination pursuant to the provisions of Rule 18A of the Rules of Court. [32] On 4 December 2008, Madam Justice Holmes ordered that Caroline and Mr. Grayson be removed as executors of the Will. At the same time, the Court directed that Robert Baird be appointed Judicial Trustee of the Estate. [33] The Public Guardian's Rule 18A application, referenced in the 24 September 2004 order of Groberman, J. came on for hearing in March 2009 before Mr. Justice Groves. However, the hearing did not proceed, as the Court was concerned that some beneficiaries who could potentially be

affected by the order sought were not aware of the application. The Court adjourned the matter to 14 April 2009 and in doing so directed the applicant to ensure its motion materials were delivered to all of the appropriate beneficiaries. [34] At paragraph one of the Public Guardian's Notice of Motion, the Court is asked 1. To determine the issue of whether the issue of Michael Collett has been underpaid, as set out in paragraph 21 of the Order of the Honourable Mr. Justice Blair made August 30, 1999 and amended November 27, 2000. [35] When the summary trial application came before me, the following parties appeared: a. The Public Guardian, represented by legal counsel; b. Paula Collett, beneficiary; c. Robert Baird, Judicial Trustee; d. Caroline Pound, beneficiary (via telephone); and e. Theresa Grieg (née Pound) beneficiary (via telephone). Issues [36] Only the second half of the issues that were before Powers, J. on the special case hearing in 2000, that is the 1994 Loan and Paige's entitlement under the Will, have reappeared before me on this summary judgment application. That is understandable given the Court of Appeal's ruling and its impact on the first half (ie. the propriety of the 1993 Distribution of $1,000,000). [37] In order to determine the issues before me, I must address and answer the following four questions: a. Is the issue of the 1994 Loan and the 1998 Contra

res judicata? b. What standard of care was expected of the Trustees? c. Did the Trustees meet the standard of care expected from them and was the 1994 Loan a proper exercise of their duties?; and d. Has Paige Arduini been underpaid from the Estate and if so by how much? Position of the Parties Public Guardian [38] The Public Guardian asserts that the Trustees failed to properly execute their duties to the Estate with the level of skill and prudence expected of them and, in doing so, improperly administered the Estate to the material detriment of Paige. In particular, the Public Guardian complains that Paige did not receive her complete and rightful share of the 1998 Distribution on account of the Trustees decision to hold back the 1998 Contra. [39] The Public Guardian points to the fact that Caroline personally benefited from the decisions she and the other Trustees made regarding the distribution of funds from the Estate, and in particular the substantial loans that were made from Estate to her, her children and Paula Collett in 1994. The Public Guardian submits that the fact that Caroline's conflict of interest went unnoticed by any of the Trustees, demonstrates a clear lack of understanding and diligence on their part. [40] The applicant is especially critical of the Trustees failure to appreciate the fact that the identity of the beneficiaries under the Will could not be

determined until Mrs. Collett's death. According to the Public Guardian, the Trustees completely ignored who the successive beneficiaries of the Will would be, despite the Will's intention that it was those persons who were to share in the capital of the Estate. [41] During the course of his submissions, counsel for the Public Guardian used the following portion of the 24 May 2000 examination for discovery of Caroline as evidence of her failure to appreciate the importance of determining who the legal beneficiaries under the Will actually were and as a general illustrative example of her lack abilities as a Trustee: 284 Q Okay. Now, this is a copy of a loan agreement that was provided to me by Mr. Grayson and this has to do with a sixty thousand dollar loan to Michael that was at the same time as you were lent the hundred and fifty thousand to construct the house? A Yes, yes. That was the time, yes. 285 Q That's your signature? A Yup. [...] 288 Q Exhibit "3" [the Loan Agreement] says on it that the borrower, in this case Michael Collett? A Yes 289 Q Is a residual beneficiary? A M'hm 290 Q Of the estate of Allan J. Collett. What do you understand that sentence to mean? A Just he's a beneficiary the same as the other grandchildren were. That's - 291 Q Was there any thought at the time that you signed this document that he had to survive your mother in order to become a

beneficiary? A Well, we just automatically expected him to. 292 Q Did you give any thought to the fact that he might not? A No, I didn't really. [42] In advancing it arguments, counsel for the Public Guardian relies upon the following authorities: McPhail and others v Doulton and others, [1970] 2 All E.R. 228 (H.L.); Nichols v. Wevill Estate, [1995] B.C.J. No. 2179 (S.C.), 13 B.C.L.R. (3d) 137 [Nichols]; and Re Potter, [2000] B.C.J. No. 759 (S.C.). [43] With respect to the amount allegedly owing to Paige, the Public Guardian submits that amount should consist of the 1998 Contra (ie. $80,719.50), plus interest running from the date of the 1998 Distribution (ie. 31 July 1998). [44] Finally, the Public Guardian argues that the respondent's plea of res judicata is unfounded. In making this submission, the Public Guardian maintains that the 1994 Loan and 1998 Contra were not a part of the accounts that were considered and approved by Blair, J. in August 1999. It also maintains that the Court of Appeal's judgment overturning the decision of Powers, J. only addressed the issue of the 1993 Distribution and not the 1994 Loan and 1998 Contra and therefore was not a bar to proceeding with the Rule 18A application. Paula Collett [45] It is not unfair to describe Paula Collett as the lead opponent to the Public Guardian's application. As compared to all of the other respondents, Ms. Collett

took full advantage of her opportunity to address the Court. [46] Interestingly, at the outset of these proceedings, Paula Collett was in agreement with the Public Guardian's application. In a written Response dated 14 November 2007, she consented to the granting of the relief being sought on the following terms: 1. The executor Bill Grayson to be held accountable and repay the issue of Michael Collett, regarding the unsecured loan given to Michael Collett by Bill Grayson, Executor of the Estate of John Allan Collett; 2. The remaining beneficiaries not be held accountable and a loss of their inheritance because of the actions of the Executors; and 3. Any remaining issues involving the underpayment of the issue of Michael Collett not be directed at the Estate of John Allan Collett, but made against the Executors of the Estate. [47] However, by means of a written Amended Response dated 20 March 2009, Ms. Collett altered her position and made it clear that she no longer consented to the relief being sought by the Public Guardian. [48] While it may be that the beneficiaries have a claim against Mr. Grayson and or the other Trustees for their acts or omissions, I decline to say any more on the subject, as it is not specifically before me on this application. [49] Paula Collett argues that the Public Guardian is barred from seeking relief for Paige on account of the doctrine of res

judicata. In practical terms, Ms. Collett asserts that the application seeks to have this court re-examine an issue that was judicial considered and approved by Blair, J. in August 1999. [50] The foundation of Ms. Collett's position lies on the proposition that all of the beneficiaries under the Will reached a final resolution and that the agreement between them is evidenced in the Minutes of Settlement. Moreover, according to Ms. Collett, all of the parties except for the Public Guardian agreed that the residue of the Estate should not have to pay for the 1994 Loan to Michael Collett. [51] Paula Collett also maintains that the passing of the annual accounts of the Estate up to and including 2 January 1999 that occurred before Blair, J. on 30 August 1999 included the 1994 Loan and the 1998 Contra and therefore this Court is prohibited by the doctrine of res judicata from considering those items or their consequences for Paige. Implicit in Ms. Collett's argument is that everyone, except for the Public Guardian, agreed that the 1998 Contra that was held back from Paige's share of the 1998 Distribution was proper and that even if it was not, it was approved by Blair, J. and consequently cannot be judicially revisited. [52] During the course of submissions, Paula Collett took exception to the Response filed on behalf of her now deceased father, John Jr. In particular, she asserted

that the Response did not reflect her father's true wishes or position regarding the 1994 Loan and Paige's entitlement under the Will. In support of her position, Ms. Collett filed a supplemental affidavit attaching various e-mails from her father which she maintains show he did not agree with the Public Guardian's position or the claim it was advancing on behalf of Paige. Robert Baird [53] Mr. Baird in his capacity as Judicial Trustee filed no materials in response to the applicant's Notice of Motion. Although he appeared at the hearing of the application, he made what could only be described as a token contribution to the proceedings. [54] While Mr. Baird indicated that he had no submissions to make, he nevertheless did deliver a short but pointed monologue expressing his frustration with the pace and manner in which this estate litigation has proceeded over the years and observed that "globally the whole process was mind boggling" to him. In sum, Mr. Baird articulated his frustration with the legal system and bewilderment at how the Estate that at one time was worth approximately $6,000,000 had been reduced to approximately $400,000. Caroline Pound [55] Caroline Pound filed a written Response dated 3 April 2009. In that Response, Ms. Pound indicated she did not oppose the relief sought in paragraph one of the Public Guardian's Notice of Motion, that is, an order determining

whether the issues of Michael Collett has been underpaid. However, she did oppose any order directing that the 1994 Loan be paid out of the Estate or that the beneficiaries of the Estate pay for that loan. [56] When given the opportunity to address the Court on the substance of the Notice of Motion and the submissions of counsel for the applicant, as well as the submissions of the other parties, Ms. Pound indicated that she had no submissions to make. Teresa Grieg (née Pound) [57] Ms. Grieg filed no written materials in response to the applicant's Notice of Motion. When given the opportunity to address the Court on the relief being sought by the Public Guardian, Ms. Grieg simply indicated that she supported the comments of her cousin Paula Collett. John Collett Jr. [58] In a written Response dated 30 November 2007 prepared by his counsel Hugh McLellan, John Jr. informed the Court that he did not oppose the relief being sought by the Public Guardian. In particular, the Response notes: The Respondent agrees that a determination of this issue needs to be made and does not oppose an order that the issue of Michael Collett receive funds from the estate of John Allan Collett Sr. in an amount equal to the funds withheld from the issue of Michael Collett by the executors at the time of the interim distribution in 1999, if it has not been paid. [59] As a result of Paula's supplementary

affidavit that was filed following the hearing of this application, Mr. McLellan filled a responsive affidavit dated 27 April 2009. At para. 9 of the affidavit, Mr. McLellan swears In response to the allegation that the Response to the PGT's [Public Guardian and Trustee] application that I provided to the other counsel dated November 30, 2007, did not reflect the instructions I received from my client, this is incorrect. I had numerous communications in person, by telephone and in writing with my client since receiving the Notice of Motion and Notice to Admit from the PGT that is the subject of the current application on October 29, 2007 and the November 30, 2007 Response accurately reflects the instructions I received from John. William H. Grayson [60] Although Mr. Grayson did not appear at the hearing before me, he did file a written Response dated 19 March 2009. [61] Particularly relevant to the issues before me are the following portions of Mr. Grayson's Response: John Collett persisted and so Gloria Collett ordered that loans be provided to remaindermen totally (sic) $600,000. Note this loan was determined by John and his counsel Mr. Knapp and Gloria Collett even though Mr. Knapp's letter to make the loan stated it was ordered by Mrs. Collett and Mrs. Pound. John thus blamed his sister for his action. It was then arranged to lend applicants loans at 7% interest. The loans

though not authorized investments were only to remaindermen and thought safe even though most borrowers couldn't supply security. Note at this time the executors did not know that John Collett had vesting secretly changed. They found out years later. Grayson, though an executor but not a beneficiary accepted that his duties were only to see that all beneficiaries were treated equally and to see all required filings such as income tax returns were made. [...] According to Allan's will all beneficiaries were ascertained when he died so Michael's estate was paid in full or: Allan's original will was altered when John Collett while varying the will to which all beneficiaries agreed, secretly changed vesting to which no one agreed, now made Michael's daughter an heir. However the will as altered states:- "such issue shall take in equal shares per stirpes the share of the residue of my estate which such deceased grandchild would have been entitled if then living." This states in certain terms that Michael's daughter cannot receive more than Michael would. Further Michael Collett was killed in an automobile accident. His award plus the money in his estate should be applied to his debts before anything is left to his heirs. Analysis 1. Is the issue of the 1994 Loan and subsequent 1998 Contra res judicata? [62] In simple terms, res judicata refers to the prohibition against

re-litigating an issue or claim that has already been adjudicated. The doctrine of res judicata incorporates two distinct branches: cause of action estoppel and issue estoppel. The principles of the doctrine were explained by Dickson, J. (as he then was) in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544 [Angle] at 555: In earlier times, res judicata in its operation as estoppel was referred to as estoppel by record, that is to say, estoppel by the written record of a court of record, but now the generic term more frequently found is estoppel per rem judicatam. This form of estoppel, as Diplock L.J. said in Thoday v. Thoday [[1964] P. 181.], at p. 198 has two species. The first, "cause of action estoppel", precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction. ... The second species of estoppel per rem judicatam is known as "issue estoppel", a phrase coined by Higgins, J. of the High Court of Australia in Hoystead v. Federal commissioner of Taxation [ (1921), 29 C.L.R. 537.], at p. 561: I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppels where, the cause of action being

different, some point or issue of fact has already been decided (I may call it "issue-estoppel). Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853.] at p. 935, defined the requirements of issue estoppel as: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies... [63] The rational and purpose underlying the doctrine of res judicata was articulated more recently by Mr. Justice Binnie in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 [Danyluk] at paras. 18-19 [18] The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be

avoided. [19] Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of [page474] justice. Where as here, its application bars the courthouse door against the appellant's $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a re-examination of some basic principles is warranted. [64] In Landcraft Ventures Ltd. v. TK Sales Ltd., 2008 BCSC 1417 at para. 10, N.H. Smith, J. neatly distilled the distinction between the two branches of res judicata as follows: A matter may be res judicata on the basis of either "issue estoppel" or "cause of action estoppel". Issue estoppel applies to individual issues or facts that the court has already decided. Cause of action estoppel arises when a complete action already decided is duplicated in new claims. [65] Although Paula Collett did not specifically articulate which of the two branches of res judicata she was relying upon in her opposition to the Public Guardian's application, I find "cause of action estoppel" is not a consideration in the present case as I am not addressing a new action but simply a continuation of a long running claim. Ms. Collett's

complaint fits more appropriately within the "issue estoppel" category and consequently it is from this perspective that I will address her concerns. [66] According to the principles set out in the jurisprudence, including Angle and Danyluk, in order for a claim of "issue estoppel" res judicata to succeed, the party advancing the argument must show 1. the same question or issue has been decided; 2. the judicial decision which is said to create the estoppel was final; and 3. the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised. [67] I do not need to go beyond the first part of the test to decide the applicability of the doctrine of res judicata to the present case. [68] Although the question of the 1994 Loan may have been part of the case that was before Blair, J. when the parties appeared before him in August 1999, the issue was specifically excluded from the resulting Order. In my opinion, the parties intentionally left the question unresolved, so that it could be determined by a court at a later date if necessary. In reaching this conclusion, I have relied upon the following: a. Paragraph 21 of the Minutes of Settlement that formed the basis of Blair, J.'s order of 30 August 1999 acknowledges that the parties had not reached an agreement on whether the estate of Michael Collett had been underpaid and that

such an issue would therefore need to be determined by the Court or by subsequent agreement of the parties; and b. The 30 August 1999 order of Blair, J. as amended by his order of 27 November 2000, specifically exempted from its terms the question of whether the issue Michael Collett (ie. Paige) had been underpaid, and allowed for the issue to be determined by means of Rule 18A summary judgment application. [69] I have also found, contrary to Paula Collett's assertion, that all of the beneficiaries were not in agreement with respect to the 1994 Loan and Paige's entitlement under the Will. More particularly, on the evidence before me, including Ms. Collett's supplemental affidavit and the reply affidavit of Mr. McLellan, I am not persuaded that the intention of Ms. Collett's father, John Jr., was anything other than what is expressed in the Response filed on his behalf by his counsel and noted earlier in these reasons. [70] Paula Collett maintains that the Court of Appeal's decision overturning the 2000 decision of Power J. supports her position. In particular, she argues that the Court of Appeal determined that the specific issues that are before me have been rendered res judicata by the passing of the accounts and the 30 August 1999 Order of Blair, J. I disagree with this position. The Court of Appeal allowed the Trustee's appeal based on procedural deficiencies at the trial

level. Those deficiencies consisted of the failure to give proper notice to Ms. Collett of the hearing of the special case before Powers, J. and what was held to be an impermissible collateral attack on the 30 August 1999 order of Blair J. The Court of Appeal was aware of the distinction between the Trustees' 1993 capital encroachment of $1,000,000 and the 1994 loans the Trustees made to various contingent beneficiaries using Estate funds. The Court of Appeal was also alert to the fact that the later issue did not form part of Blair, J.'s 30 August 1999 order and remained outstanding and undecided. In particular I note the following passages from the Court of Appeals reasons: [2] As I have concluded that the order is fatally flawed for procedural reasons, I do not find it necessary to address on their merits the submissions that the chambers judge erred. [...] [30] Thus, Paula's share of the estate stands to be reduced by operation of an order of which she was not given notice and on which she had no opportunity to make submissions. The rule that parties must be given an opportunity to be heard on decisions affecting their rights is a basic and pervading principle of our law. Here, Paula was denied that fundamental right of procedural fairness and, for that reason, the order must be set aside. [31] I would set aside the order for another procedural defect, as well. [32] The

"order of August 30, 1999" referred to in the order under appeal is the order made by Blair, J. which I have already mentioned. The question of res judicata arose because the appellants took the position that, since Blair J. had settled and approved the estate accounts up to 2 January 1999, it was not open to the court on the special case to revisit the capital encroachment and the resulting distribution. [...] [36] In my view, paragraph 1 of the order made by Powers, J. ... effectively overrules the order approving and settling the accounts, since it had approved the $1,000,000 distribution. As the special-case proceeding which resulted in the order under appeal did not challenge the 30 August 1999 order directly, the order under appeal was an impermissible collateral attack on the earlier order. In my view, Powers, J. erred in granting the order while the effect of the settlement of the executors' accounts in the 30 August 1999 order remained to be determined, which could occur only in a proceeding brought specifically for that purpose. [71] In my opinion, the Court of Appeal decision addresses the 1993 Distribution and not the 1994 loans made to the various members of the Collett family, including Michael Collett or the 1998 Distribution and subsequent contra that has impacted upon Paige. I therefore find the decision does not foreclose any further consideration of the issues that are presently before me. [72] On the whole, I am not persuaded that the issues being raised by Public Guardian in its Notice of Motion are res judicata and therefore I will proceed with the merits of the application.

2. What standard of care was expected of the Trustees? [73] Executors and trustees of an Estate are obliged to follow the provisions Trustee Act, R.S.B.C. 1996, c. 464 (the "Act"). In particular, section 15 of the Act, which was in force until February 23, 2003, and covered the time of the 1994 Loan, provided that "a trustee may invest trust money in his or her hands, if the investment is in all other respects reasonable and proper, in" and then goes on to list a number of appropriate investments, including securities, bonds, and mortgages with fairly strict restrictions. [74] The decision of Quijano J. in Nichols provides a helpful review of the law relating to the standard of care expected of executors and trustees: [26] The case of Fales et al v. Canada Permanent Trust Co. and Wohlleben v. Canada Permanent Trust Co. (1976), 70 D.L.R. (3d) 257 (S.C.C.) dealt with, amongst other things, the standard of care required of the trustees under a will with respect to exercising the powers granted to them under the will. In that case the trustees had been given the power to invest and keep invested the assets of the estate where income was for the benefit of a life tenant and the capital was to go to residuary beneficiaries. In dealing with the question of the standard of care Mr. Justice Dickson, speaking for the court, said at pp. 267-268: Traditionally, the standard of care and

diligence required of a trustee in administering a trust is that of a man of ordinary prudence in managing his own affairs (Learoyd and Carter v. Whitely et al. (1887), 12 App. Cas. 727 at p. 733; Underhill's Law of Trusts and Trustees, 12th ed., art. 49; Restatement of the Law on Trusts, 2nd ed., para. 174) and traditionally the standard has applied equally to professional and non-professional trustees.... Every trustee has been expected to act as the person of ordinary prudence would act. This standard, of course, may be relaxed or modified up to a point by the terms of a will and, in the present case, there can be no doubt that the co-trustees were given wide latitude. But however wide the discretionary powers contained in the will, a trustee's primary duty is preservation of the trust assets, and the enlargement of recognized powers does not relieve him of the duty of using ordinary skill and prudence, nor from the application of common sense. [27] The trustee has a duty to all beneficiaries. In Re Stekl; Lauer v. Stekl and Public Trustee, [1974] 6 W.W.R. 490 (B.C.C.A.) McIntyre J.A., dealing with a claim of a beneficiary as to a life interest in an estate for an order compelling the trustee to convert the property of the estate to income producing so that her life interest might be of some benefit to her, said at p. 494: It is well settled that a trustee must deal

evenhandedly between different classes of beneficiaries. This, of course, is the reason for the rule in Howe v. Dartmouth where that case is applicable. While as I have found there is a requirement that a conversion be made here, there is as well an undoubted power to postpone. In the absence of mala fides on the part of the trustee, and none is suggested here, that power may not as a general rule be gainsaid. Nevertheless the interests of the life tenant must be protected.... [28] In Law of Trusts in Canada Professor Donovan Waters says, at p. 788: ...That duty must be discharged with honesty, objectivity and care, but that is all. Impartiality lies in the presence of an honest and objective evaluation of each named beneficiary's position, and a consequent decision. The same is true when trustees have a power of encroachment over capital in favour of joint life tenants, or even a power of appointment over capital. The duty of impartiality has been breached when honesty, objectivity and care are all present, but the result is one which favours Beneficiary A over Beneficiary B without an express or implied authority from the trust instrument.... Perhaps the principal impact of the rule upon trustees, however, is when they must administer the trust assets in such a way that they provide fairly for the beneficiaries whose interests in the trust property are successive. [75]

Counsel for Public Trustee also brought to my attention the following additional passages from Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984) at 690, where Professor Waters provides some useful observations relating to the duties of a trustee: The obligation which lies at the base of trusteeship has resulted in there being three fundamental duties applicable to all trustees. First, no trustee may delegate his office to others; secondly, no trustee may profit personally from his dealings with the trust property, with the beneficiaries, or as a trustee; thirdly, a trustee must act honestly and with that level of skill and prudence which would be expected of the reasonable man of business administering his own affairs. These might be called the "substratum" duties, to which the duties associated with the particular trust are added. [76] The principles enunciated in the Nichols decision and as well as those articulated in the passage from Professor Waters' text are reflected in s. 15.2 of the Act, which came into force in February 2003 and states that "[i]n investing trust property, a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments." [77] Having accepted their appointments as Trustees, Mr. Grayson, Mrs. Collett and Caroline each took on the serious and onerous responsibility of ensuring Mr.

Collett's intentions were fulfilled and the Estate managed in a proper manner. In many respects the financial well being of some, if not all, of the potential beneficiaries lay in their hands. In other words, the Trustees were required to act with the skill and prudence of a careful business person tasked with managing the Estate's assets for the benefit of others. The standard expected of the Trustees was not perfection; however, they were obliged to exercise sound judgment keeping in mind, not their own personal interests, but the best interests of the beneficiaries. One of the first and most important steps in exercising this judgment was achieving an understanding and appreciation of the terms of the Will, as varied in 1993, and particularly being able to properly determine the identity of the beneficiaries.

3. Did the Trustees meet the standard of care expected from them and was the 1994 Loan a proper exercise of their duties? [78] I accept the Public Guardian's argument that the Trustees failed to act with an appropriate level of skill and prudence required of them in that they approved the 1994 Loan when it was clearly an unauthorized investment and in breach of the Act. [79] The fact that the 1994 Loan was an unauthorized loan is candidly acknowledged by Mr. Grayson in his written Response and no party to these proceedings has taken any issue with that fact. [80] I also accept that Caroline was not a suitable candidate to become a Trustee as she lacked the knowledge and skills required for that position. [81] The approval and issuance of the 1994 Loan, without comprehending and appreciating that Michael Collett was only a contingent beneficiary is a clear example of the Trustees failing to in their duties owed to the Estate. [82] I agree with the submissions on behalf of the Public Guardian that one of the basic responsibilities of a trustee of an estate is to know whether a person who is receiving a distribution is a beneficiary or not. [83] Of particular importance to the present application is the fact the amended Will provided that upon Mrs. Collett's death, the one half interest in the Estate's residue that had previously been earmarked for the Grandchildren who survived

Mr. Collett would now be divided between the Grandchildren who survived both Mr. and Mrs. Collett. Moreover, a new term of the Will stipulated that in the event any of the Grandchildren predeceased Mr. or Mrs. Collett, then any child or children of that grandchild would inherit per stirpes their deceased's parent's share of the Estate. [84] It is apparent that the Trustees in the present case proceeded on the misguided belief that the identity of all of the beneficiaries under the Will crystallized at the time of Mr. Collett's death and, more particularly, that Michael Collett was as of that date legally entitled to an inheritance under the Will in an amount greater than the loan granted to him in 1994. [85] It is suggested in Mr. Grayson's Response and was alluded to briefly during the course of submissions that unbeknownst to and without the consent of the parties, a secret vesting clause was inserted into the Will when it was varied in 1993, making the great grandchildren of Mr. Collett potential heirs of the Estate. The evidence on this point is non-existent and if the position of the respondents or any of them is that they did not know of or agree to the revised term 3(j)(b) of the Will, then I am unable to accept that argument. The order varying the Will was made in 1993 and the parties, including all of the Trustees, must have been aware of its new terms. The revised

Will was relied on and acted upon for close to 15 years before any attempt was made to vary the order of Hunter, J. That unsuccessful application by Paula Collett before Groberman, J. in September 2007, was made only after the Court of Appeal had overturned Powers, J.'s 2000 decision. [86] On account of their lack of knowledge and or abilities, the Trustees permitted and approved the 1994 Loan to Michael Collett mistakenly believing he was a beneficiary from whom the loan amount could be recovered from any future Estate distribution to him. The simple fact is the Trustees made an unauthorized loan from Estate funds to Michael Collett in 1994 in their belief that his status as a beneficiary of the Estate was settled. [87] The existence and history of the 1994 Loan is a prime example of the problems that can arise when trustees do not exercise the diligence and prudence expected of them. In the present case, the Trustees agreed with Michael Collett's position, as set out in his letter of 11 January 1994, that the $60,000 loan could be set-off against any future inheritance from his grandfather's estate he would surely receive at some point in the future. In accepting that position, the Trustees failed to realize that at the time of the 1994 Loan, Michael Collett was not yet entitled to anything under the Will, given that his grandmother was still alive. At best, Michael Collett

was a potential beneficiary in 1994. The Trustees overlooked the fact that any of the Grandchildren, including Michael Collett, could pre-decease their grandmother. This was a fundamental mistake on the part of the Trustees and led them into error in determining who was a beneficiary under section 3(j)(b) of the Will. The fact of the matter is, by predeceasing his grandmother Michael Collett never became a beneficiary under the Will. [88] I find the Trustees failed to meet the standard of care expected of them in the administration of the Estate. In particular, I find the 1994 Loan to Michael Collett was an improper and unauthorized investment and in clear contravention of the Act. This fact should have been understood by all of the Trustees, especially Mr. Grayson. [89] I also find the Trustees had a duty to preserve the Estate's capital in the best interests of the beneficiaries and failed in this duty by ignoring, overlooking or not properly appreciating the critical section of the Will that set out the procedure for determining the identity of those beneficiaries. [90] By failing to appreciate that the identity of the beneficiaries was not yet known when they made the 1994 Loan, the Trustees favoured a potential beneficiary whose interests had not vested (ie. Michael Collett) over beneficiaries whose interests did ultimately vest (ie. Jennifer, David, and Paige). This was contrary to the intentions of the Will and in breach of the Trustee's duties to the Estate.

4. Has Paige Arduini been underpaid from the Estate and if so by how much? [91] Paige's interests under the Will are independent from any her father may have been entitled to and they cannot be limited by anything he did during his lifetime. This includes incurring a loan said to be an advance on his portion of his inheritance. [92] When Michael Collett died, his estate crystallized and consisted of his assets and liabilities that existed at his death. These are set out in the list of Assets, Liabilities and Distribution and include the $60,000 loan from his grandfather's Estate. That loan did not and could not act as a charge on his portion of the Estate for at no point did he ever become entitled to such an inheritance. Therefore the loan became a charge on his own estate, not the portion of his grandfather's estate that Paige was entitled to. [93] What the Trustees had not anticipated actually occurred: Michael Collett died before his grandmother. This meant that on the date of his death the identities of the beneficiaries under the Will were still unknown. Equally apparent is the fact that with his death, Michael Collett and his estate lost all entitlement to any portion of the Estate when his grandmother eventually died. [94] The fact that Paige, Michael Collett's daughter, was born after his death has no bearing on the issues before me. What is critical is that Paige was

alive when Mrs. Collett died and therefore became a beneficiary of the Estate in her own right. Her right to an inheritance did not originate from or flow through her father's estate. She obtained that right by operation of the Will and the fact that she was a surviving great-grandchild of Mr. and Mrs. Collett. [95] The opponents to the Public Guardian's application argue that Paige cannot and should not get more than what Michael Collett was entitled to under the Will. They use this argument to justify the 1998 Contra that deducted the 1994 Loan amount, plus interest, from the amount distributed to Michael Collett's estate in 1998. The argument fails to account for the fact that Michael Collett never became a beneficiary of the Estate and therefore was never entitled to anything under the Will. [96] Michael Collett's estate should never have been considered for or received any of the 1998 Distribution. Instead, the funds from that distribution should have gone directly to Paige by operation of section 3(j)(b) of the Will. I find that this section of the Will cannot be interpreted in such a way as to limit Paige's interests in the Estate on account of actions taken by her father. The Trustees were wrong to believe at the time they granted the 1994 Loan that Michael Collett could place a charge on the future distributions he would receive from the Estate, because it was

possible, and sadly turned out to be true, that he would never be entitled to any distributions. I find subparagraph 3(j)(b) of the Will clearly defines how the residue of the Estate is to be distributed amongst those family members who survive both Mr. and Mrs. Collett and in doing so become beneficiaries of the Estate. [97] I find the Trustees' decision to withhold the 1994 Loan amount, plus interest, from the 1998 distribution was improper and without legal justification. [98] The 1994 Loan was made to Michael Collett and therefore if it created anything it was a charge on his estate. When Michael Collett died, responsibility for the loan flowed to his estate. Paige did not assume responsibility for her father's liabilities and therefore if the Estate wishes to recover the 1994 Loan, it should look to Michael Colletts' estate and not to Paige. [99] Under the revised Will, when Mrs. Collett died, the identity of all of the beneficiaries crystallized and that included Paige. She was entitled to the full amount of the 1998 distribution without any "contra". As a result, I find that Paige was underpaid by the Estate in the amount of $80,719.50. Conclusion [100] The Public Guardian's Rule 18A application for summary judgment is granted. My order will consist of the following: a. A declaration that the loan made by the Trustees of the Estate to Michael Collett on 14 January 1994

in the amount of $60,000 was invalid and contrary to the provisions of the Trustee Act; b. A declaration that the Trustees of the Estate were not entitled to offset the aforesaid loan plus interest from a distribution made to Paige Arduini on 31 July 1998; and c. A direction that, within 14 day of the date of this order, the Judicial Trustee of the Estate pay to the Public Guardian and Trustee, in trust for Paige Arduini, the sum of $80,719.50 together with interest from and after 31 July 1998. Costs [101] The Public Guardian seeks special costs on a full indemnity basis from the Estate. [102] When addressing the issue of costs of the appeal from the 2000 decision of Powers, J., Smith J.A. concluded, at para. 15: [A]t the heart of this proceeding are allegations that the executor mismanaged the estate. No question of construction of the will is involved and it cannot be said that the parties were "led into the litigation" by the words used by the testator. Thus, there is no basis for an award of special costs of the appeal payable out of the estate. [103] I recognize that the Public Guardian has been successful in this application for summary judgment and that in the ordinary course it would be entitled to its costs. [104] The question is not whether the Public Guardian is entitled to its costs; the question is whether those costs should be from the Estate and on the scale

sought. [105] As I observed at the outset of these reasons, the legal proceedings relating to the Will have been long, arduous and at times quite complex. They have no doubt taken a significant emotional toll on the members of Mr. Collett's family, some of whom are now deceased. In hindsight, perhaps some of the legal disputes could have been avoided or handled in a more efficient and cost-effective fashion. In my opinion, responsibility for the manner and pace in which this matter has proceeded is to be shared amongst all of the parties. [106] I find there is now a firm and uniform desire on the part of all parties to put an end to the costly litigation that has consumed Mr. Collett's family and his Estate for far too long. [107] I am not satisfied that I have all of the necessary submissions to reach a proper decision on the issue of costs. I will therefore leave the issue of the Public Guardian's costs to the parties to resolve. If no agreement can be reached, then the matter may be set down for hearing before me on a mutually convenient date obtained through the registry. "The Honourable Mr. Justice Gaul"