Hayman Estate v. Gordon

2001BCSC1753 Citation: Estate E.L. Hayman v. Gordon et al. Date: 20011231 2001 BCSC 1753 Docket: S32841 Registry: Nanaimo

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ESTATE OF ELEANOR LOUVAIN HAYMAN, DECEASED

PLAINTIFF AND:

ALAN WILLIAM GORDON AND DONALD GORDON

DEFENDANT

REASONS FOR JUDGMENT OF MASTER J.W. HORN Counsel for the Estate: W.A. Scott Counsel for Defendants: P. Giroday Date and Place of Hearing: November 29, 2001 Nanaimo, BC [1] This was an application for an order that Terrence Hayman be appointed representative ad litem of the estate of Eleanor Hayman, Deceased, in an action already commenced by the estate against the defendants. [2] Terrence Hayman and his brother Alan are the sons of George Hayman by his first marriage. George Hayman's second marriage was to Eleanor Hayman who had two sons by a previous marriage, Alan Gordon and Donald Gordon, the defendants in this action. [3] George Hayman died on July 4, 1992. His estate was admitted to probate and distributed to Eleanor Hayman, the sole beneficiary. Eleanor Hayman died on May 18, 2001. Probate of her estate has not yet been applied for. Alan Gordon is the executor named in her will. [4] It is alleged in the statement of claim, and stated as a fact in the affidavit of Alan Hayman made in support of this application, that George Hayman and Eleanor Hayman entered into an agreement in 1990 which recited, as a fact, that the husband had contributed one-third and the wife had contributed two-thirds of the value of the property owned by them as joint tenants and that they desired on the death of the survivor of them that the property then owned by the survivor be divided between his

children and her children in those proportions. It is said that each entered into mirror wills to effect this objective. [5] After his death, Eleanor Hayman did not alter her will except to appoint Alan Gordon as sole executor of the will. [6] Under the will of George Hayman, Eleanor Hayman acquired his whole estate. It is alleged that her ability to dispose of that estate, during her lifetime or after her death, was circumscribed by their agreement. [7] It is alleged that shortly before her death, she gave to each of Alan Gordon and Donald Gordon, as a gift, a sum of $125,000. It is said that this is in breach of the agreement. If so, the estate may have a good cause of action against Alan Gordon and Donald Gordon for repayment of that money. [8] This action, naming the estate as plaintiff, was commenced for just that purpose. As no executor has yet been appointed, the estate is unrepresented. If Alan Gordon is appointed executor, he is unlikely to wish to pursue the action. The application is to appoint Terrence Hayman as representative ad litem for the purpose of pursuing the action. [9] The authority relied on for making such an appointment is s. 9 of the Estate Administration Act, RSBC 1996 Cap. 122, alternatively, Rule 5(19) of the Supreme Court Rules [10] These two enactments were considered in Cameron Estate v. Harder (1995) 41 CPC (3d) 152 (BCSC). In that case the

guardian of potential beneficiaries who were minor children of their deceased mother, desired to sue on behalf of her estate for an interest in what was alleged to be trust property in the hands of the common-law spouse of the deceased. The deceased died intestate and no one had applied for appointment as administrator of her estate. Action was commenced by a writ and statement of claim entitled "In the Matter of an Intended Proceeding" and the estate was named as plaintiff. The guardian applied for an order appointing him as representative ad litem. [11] Master Bolton refused to make the appointment. He considered s. 9 of the Estate Administration Act and Rule 5(19) of the Rules of Court and observed that the provisions of the Act and the Rule were almost identical. He held that s.9 of the Act and Rule 5(19) applied only where the estate has, or the deceased had, an interest in a proceeding, and that this meant in an existing proceeding. He held that there was no authority for issuing a writ in an intended proceeding and that accordingly, there was no valid proceeding before the court in which a representative ad litem could be appointed. The proceeding was therefore a nullity. [12] Here, the solicitor has not issued the writ in an intended proceeding, but this fact, it seems to me, does not distinguish the case from that which was before Master Bolton. He held, and I

respectfully concur with him, that on their plain wording neither s.9 nor Rule 5(19) permits the appointment of a representative ad litem to commence an action on behalf of an estate or of a deceased person. [13] This conclusion is, it seems to me, fortified by a consideration of the origins of s. 9 of the Estate Administration Act and of Rule 5(9) of the Rules of Court. [14] The Estate Administration Act, under the short title of the Administration Act, first appeared in British Columbia statute law as Chapter 73 of The Revised Statutes of British Columbia 1897. The Act which authorized Commissioners to revise and consolidate a new edition of the laws of the Province of British Columbia (The Revised Statutes Act, Chapter 50, S.B.C. 1895) gave, in s.2, the power to the Commissioners to include in the Revised Statutes those portions of the Statute Law of England in force in and applicable to, British Columbia. The Act which brought into force the Revised Statutes of 1897, (An Act Respecting the Revised Statutes of British Columbia Ch. 41, SBC 1897) provided in s.6(2) that on the proclamation of the Revised Statutes, English Statute Laws were repealed to the extent that they were incorporated in or repugnant to the Revised Statutes. [15] The Administration Act was such a statute. Its provisions did not appear in any Act passed by the Legislature of the Colony of Vancouver Island

or the Colony of British Columbia or the Province of British Columbia. Its provisions were taken from a number of English Statutes dealing, mainly, with executors and trustees. [16] The genesis of each section of the Administration Act was given by the Commissioners at the foot of each section. The genesis of s.9(1) of the Administration Act, was given, by the Commissioners, as s.44 of an English Act of 1852 entitled An Act to Amend the Practice and Course of Proceeding in the High Court of Chancery (15-16 Vict. Ch. 86). Section 9(1) of the Administration Act is in almost identical terms to s.44 of the English Act of 1852. Section 9 of the present Estate Administration Act is in almost identical terms to s.9(1) of the Administration Act. [17] Rule 5(19) of the Supreme Court Rules first appeared as M.R.126 in the British Columbia Supreme Court Rules of 1890. The endnote to M.R.126 ascribes its genesis to M.R.168 of the English Supreme Court Rules of 1883. M.R.168 of the English Rules is in identical terms to s.44 of the same English Act of 1852. The English Rules of 1883 were enacted after the passing of the Judicature Act of 1875 creating the Supreme Court of Judicature and conjoining the administration of law and equity in the same proceeding. Section 44 of the 1852 Act (15-16 Vict. Ch.86) was repealed by the Statute Law Revision and Civil Procedure Act 1883 (Ch.49). [18] It

is apparent therefore that M.R.126 of the Supreme Court Rules of 1890 and s.9(1) of the Administration Act of 1897 each derive from the same English Statute. [19] Rule 63 of the Alberta Rules of Court in force in 1959, contained a provision which is almost identical to s.9 of The Estate Administration Act and to Rule 5(19). The history of the Alberta rule was traced in Joncas v. Pennock (1959) 27 WWR 174 (Alta. A.D.). It was found that the Alberta rule had its genesis in s.44 of the English Act of 1852. [20] In that case, the plaintiff alleged that she was the residuary beneficiary of her father's estate. The defendant was a solicitor who was named executor of her father's will. No grant of probate or administration had ever been made with respect to the deceased's estate. The action was brought by the plaintiff personally, claiming that the defendant, during the lifetime of her father, had wrongfully obtained title to certain lands belonging to her father. [21] The plaintiff argued that she had the right to bring the action personally and not on behalf of the estate. [22] The Appeal Court said, at page 176: There would appear to be no doubt that where certain equitable remedies are sought, the beneficiary of an estate can commence an action. From the authorities cited, it is apparent that the court was referring to the fact that a beneficiary could commence an action, before

any grant of administration had been made, in order to obtain interim relief for the protection of the assets of the estate. [23] The court said at page 178: It will be seen that a beneficiary's right to bring an action for equitable relief is very limited and it would not extend to an action such as the present one. And on the same page, Even if the appellant had a right to commence the action without administration, there would appear to be no precedent which would justify her in proceeding to trial without doing so. [24] In the alternative, the plaintiff asked the court to appoint her as representative ad litem under Rule 63 of the Alberta Rules of Court. [25] At page 179, the court considered that application. It held that the appointment referred to in s.44 of the English Act of 1852 was the same as the limited grant of administration for a particular purpose which the Ecclesiastical Courts used to make. The court concluded, at page 180, that Rule 63 is wider than s.44 and while it may not be strictly correct that a person appointed under the Rule is not an administrator ad litem, such an administrator has very limited rights and these would not extend to commencing or carrying on an action. [26] The corollary of that conclusion that s.44 of the English Act did not authorise a court to appoint a representative ad litem to defend a claim against a deceased estate was stated

in Ficulic v. Omelon [1940] 2 DLR 68 (Sask. K.B.). [27] Whatever rights a beneficiary may have to institute an action for interim equitable relief, that right is not being asserted here. The order sought is that the estate be empowered, by the appointment of a representative ad litem (or perhaps an administrator ad litem), to sue for the recovery of funds said to have been wrongfully disposed of by the testator or to be held in trust by the recipients of the funds. The Chancery practice, from which both our statute and our Rule derive, did not permit the appointment of such a representative to sue on behalf of the estate. Neither the Statute nor the Rule permits it now. [28] The application is dismissed with costs. As the action is a nullity, the costs of the application, on Scale 2, should be paid forthwith. "Master J.W. Horn"