Brooks Estate v. Brooks Estate

Brooks Estate v. Brooks Estate

The court declared the life insurance proceeds subject to a trust for the decedent's children, found that the $50,000 withdrawal and payment into B.A.E. Developments Ltd. was an improper use of trust property constituting a breach of trust, removed Brendon Ewing and Brenda Brooks as trustees, retained Frederick Brooks as sole trustee without bond, ordered an accounting of the $50,000 by Brendon Ewing by November 29, 2013, granted the trustees options after accounting to follow or obtain judgment for $50,000 with interest at 7% per annum from April 13, 2012 to judgment, and refused to relieve Mr. Ewing from personal liability under s.64 because he did not act honestly and reasonably.

Citation
2013 NSSC 319
Parties
Applicant; Co Executor and Co Trustee of the Estate of Marcel Brooks and Co Trustee of Life Insurance Trust: Frederick Brooks; First Respondent; Co Executor and Co Trustee of the Estate of Marcel Brooks and Co Trustee of Life Insurance Trust: Brendon Ewing; First Respondent; Co Executor and Co Trustee of the Estate of Marcel Brooks and Co Trustee of Life Insurance Trust: Brenda Brooks; Second Respondent; Child Beneficiary: Kahlyn McIntyre (by Litigation Guardian Devonna McIntyre); Second Respondent; Beneficiary: Justin Huntington
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
21 October 2013
Procedural Posture
Estate and Trust Litigation Concerning Life Insurance Proceeds and Alleged Breach of Trust / Application Heard and Decided (final Decision on Application)
Outcome
Application allowed in part: declaration that proceeds are trust property; Brenda Brooks and Brendon Ewing removed as trustees; Frederick Brooks appointed sole trustee; accounting and tracing ordered; s.64 relief denied to Brendon Ewing; further recovery remedies preserved and to be elected after accounting
Legal Topics
Express Trust, Resulting Trust, Breach of Trust, Removal of Trustee, Accounting, Tracing and Following of Trust Funds, Trustee Act Ss.31 and 64, Life Insurance Proceeds
Source Language
English
Trusts Probate Equity Estate Litigation Express Trust Resulting Trust Breach of Trust Removal of Trustee +4 more

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Parties

Frederick Brooks

Applicant; Co Executor and Co Trustee of the Estate of Marcel Brooks and Co Trustee of Life Insurance Trust

Brendon Ewing

First Respondent; Co Executor and Co Trustee of the Estate of Marcel Brooks and Co Trustee of Life Insurance Trust

Brenda Brooks

First Respondent; Co Executor and Co Trustee of the Estate of Marcel Brooks and Co Trustee of Life Insurance Trust

Kahlyn McIntyre (by Litigation Guardian Devonna McIntyre)

Second Respondent; Child Beneficiary

Justin Huntington

Second Respondent; Beneficiary

Procedural Posture

Estate and Trust Litigation Concerning Life Insurance Proceeds and Alleged Breach of Trust / Application Heard and Decided (final Decision on Application)

Legal Issues

  1. 1 Whether life insurance proceeds paid on decedent's death were subject to an express or resulting trust for the decedent's children
  2. 2 Whether Brenda Brooks and Brendon Ewing should be removed as trustees
  3. 3 Whether $50,000 withdrawn from trust funds and paid to B.A.E. Developments Ltd. was an improper use of trust property and is recoverable by the trust

Ratio Decidendi

The court declared the life insurance proceeds subject to a trust for the decedent's children, found that the $50,000 withdrawal and payment into B.A.E. Developments Ltd. was an improper use of trust property constituting a breach of trust, removed Brendon Ewing and Brenda Brooks as trustees, retained Frederick Brooks as sole trustee without bond, ordered an accounting of the $50,000 by Brendon Ewing by November 29, 2013, granted the trustees options after accounting to follow or obtain judgment for $50,000 with interest at 7% per annum from April 13, 2012 to judgment, and refused to relieve Mr. Ewing from personal liability under s.64 because he did not act honestly and reasonably.

Court Disposition

Application allowed in part: declaration that proceeds are trust property; Brenda Brooks and Brendon Ewing removed as trustees; Frederick Brooks appointed sole trustee; accounting and tracing ordered; s.64 relief denied to Brendon Ewing; further recovery remedies preserved and to be elected after accounting

Orders

  • Declare Manulife proceeds of $70,147.00 and Sun Life proceeds of $100,300.76 paid on Marcel Brooks's death are held on trust for Justin Huntington and Kahlyn McIntyre
  • Remove Brendon Ewing and Brenda Brooks as co-trustees of the life insurance trust