Klonarakis Estate

Klonarakis Estate

Leave to raise the new standing issue on appeal is denied because it was not raised below and is tactical; the registrar's recommendations on costs and executor remuneration were properly confirmed because they were based on evidence and submissions and the appellant produced no material to displace them; however the declaratory judgment that the respondent owed no rent was set aside because the rent issue was expressly reserved for determination by a judge and had never been decided on its merits, so that part of the judgment must be remitted for a full merits reference.

Citation
2013 BCCA 481
Parties
Appellant; Son and Executor of the Estate: Michael Zane; Respondent; Daughter and Beneficiary: Marianthy Sparks
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
1 November 2013
Procedural Posture
Probate/estate Administration Appeal From Chambers / Appeal From Order Dismissing Application to Set Aside Judgment/reconsideration Under Rule 22 1(3)
Outcome
Appeal allowed in part; leave to raise new standing issue denied; order confirming registrar's recommendations upheld; declaratory order regarding rent set aside and remitted for reference; costs awarded below to respondent payable personally by appellant; parties bear own costs in this Court.
Legal Topics
Executor Remuneration, Occupational Rent, Standing to Oppose Probate Matters, Reconsideration of Default Judgment, Registrar's Recommendations
Source Language
English
Probate and Estates Civil Procedure Equity Executor Remuneration Occupational Rent Standing to Oppose Probate Matters Reconsideration of Default Judgment Registrar's Recommendations

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Michael Zane

Appellant; Son and Executor of the Estate

Marianthy Sparks

Respondent; Daughter and Beneficiary

Procedural Posture

Probate/estate Administration Appeal From Chambers / Appeal From Order Dismissing Application to Set Aside Judgment/reconsideration Under Rule 22 1(3)

Legal Issues

  1. 1 Whether respondent had standing to apply to confirm registrar's recommendations and to oppose estate's rent claim
  2. 2 Whether appellant met the test to have a judgment reconsidered/set aside under Rule 22-1(3) (no wilful default, timely application, meritorious defence)
  3. 3 Whether the registrar's recommendations on costs and executor remuneration should have been set aside

Ratio Decidendi

Leave to raise the new standing issue on appeal is denied because it was not raised below and is tactical; the registrar's recommendations on costs and executor remuneration were properly confirmed because they were based on evidence and submissions and the appellant produced no material to displace them; however the declaratory judgment that the respondent owed no rent was set aside because the rent issue was expressly reserved for determination by a judge and had never been decided on its merits, so that part of the judgment must be remitted for a full merits reference.

Court Disposition

Appeal allowed in part; leave to raise new standing issue denied; order confirming registrar's recommendations upheld; declaratory order regarding rent set aside and remitted for reference; costs awarded below to respondent payable personally by appellant; parties bear own costs in this Court.

Orders

  • Leave to raise standing issue on appeal denied
  • Order of Mr. Justice Affleck confirmed except insofar as it declared the respondent not obliged to pay rent — that declaratory order is set aside