Kolic v. Kolic

2019 BCSC 1463 Kolic v. Kolic

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kolic v. Kolic, 2019 BCSC 1463 Date: 20190829 Docket: 14-4664 Registry: Victoria Between: Charles Kolic Plaintiff And: Mary Kolic, a.k.a. Marica Kolic, Executor of the Estate of Violet Kolic a.k.a. Ljubica Kolic, Joseph Kolic, Angela Kolic and Mary Kolic Defendants And: Mary Kolic Defendant by Counterclaim Before: The Honourable Mr. Justice Punnett Reasons for Judgment (on Counterclaim) The Plaintiff Charles Kolic: On his own behalf Not appearing Counsel for the Defendant Angela Kolic: S.L. Klinger Counsel for the Defendant Joseph Kolic D.T. Juteau Counsel for the Executor Stephanie A. Sieber: M.C. Abraham The Defendant Mary Kolic Appearing on her own behalf Place and Date of Hearing: Victoria, B.C. February 4-6 and 8, 2019; February 11-15, 2019; and March 5-7, 2019 Place and Date of Judgment: Victoria, B.C. August 29, 2019 Introduction [1] This litigation places four siblings at odds over the estate of their deceased mother, Violet Kolic. The plaintiff Charles Kolic's wills variation claim has been adjourned. These reasons relate to a counterclaim brought by his siblings Joseph Kolic and Angela Kolic against their sister, Mary Kolic. Mary Kolic moved in with their mother Violet in 2004 and allegedly assumed control of Violet's finances. The purpose of the counterclaim is to establish the value of Violet Kolic's estate. In

accordance with a January 24, 2019 order of Master Bouck, the counterclaim has been heard separately from Charles Kolic's wills variation claim. [2] For convenience I will usually refer to individuals by their first names throughout these reasons. [3] Violet Kolic died on February 10, 2013. In her will, dated August 31, 1998, she appointed her daughter Mary as her executor and left the majority of her estate to Joseph, Angela, and Mary. She bequeathed $10,000 to her son Charles, asserting in her will that he had caused her unhappiness. [4] On December 18, 2014, Charles initiated this action seeking to vary Violet's will under the Wills, Estates and Succession Act, S.B.C. 2009, c.

13. Joseph and Angela commenced this counterclaim against their sister Mary on June 14, 2018, seeking a declaration of resulting trust or judgment against her for taking funds from Violet's estate before and after her death. [5] The counterclaim proceeded before the plaintiff's wills variation claim in part because Charles was not pursuing his action, and because his ongoing health difficulties made it unclear if and when he would pursue it. Charles was represented by counsel when the action was commenced, but presently acts for himself. His wills variation claim has been adjourned on more than one occasion and is currently set for seven days starting October 15, 2019. He takes no position on the counterclaim. [6] The counterclaim is also being pursued separately because the value of the estate at the death of the testator must be determined before a testator's moral duty can be assessed for the purposes of a wills variation claim (Sim v. Sim Estate, 2016 BCSC 1222 at para. 74). That assessment also includes consideration of inter vivos dispositions and assets passing by right of survivorship. Preliminary Matters [7] Both Charles and Mary have been reluctant to have the claim or counterclaim proceed to trial. Both parties have had multiple counsel but are now acting for themselves. It is apparent the matter has only proceeded due to the efforts of the defendant Joseph Kolic,

who has filed multiple Notices of Trial and obtained several court orders to move the matter forward including: a. An order of October 3, 2017 for production of bank statements for accounts of the deceased and for accounts she held jointly with Mary. The order also required that funds held in Bank of Montreal Accounts 529 and 932 be placed into a trust account held by the current Executor, Stephanie Sieber; and b. An order of February 27, 2018 for production of Bank of Montreal records for account 019 and that funds in Bank of Montreal account 469 also be held in trust by the Executor. The order also required production of GIC records and police records. [8] On January 24, 2019, at the TMC before Master Bouck, Charles sought to adjourn his claim. His application was supported by Mary, who the Master found was allied with Charles. The Master ordered that the claim and counterclaim were to be heard separately and that the counterclaim would proceed to trial on Monday, February 4, 2019. [9] Despite advising the Master she would represent herself at trial, Mary sought an adjournment on the morning of trial because she wanted to have legal counsel and then because she was ill. [10] Her assertion on February 4, 2019 that she wanted time to retain legal counsel was not persuasive given her history of retaining counsel who then ceased to act. I concluded she had had ample time to

retain counsel and was seeking to avoid the matter proceeding to trial. She was informed that the trial would proceed. [11] Mary then complained she was not well enough to proceed and needed to go to the hospital. The matter was adjourned until 2:00 p.m. to enable her to do so. She was instructed to return with a note from a physician. No note was produced, but Mary did return and the trial commenced. However, on Thursday February 7, 2019, she failed to attend and advised by phone she was ill. The trial re-commenced on Friday, February 8 at 2:00 p.m. Throughout the trial, Mary complained she could not proceed, often in tears, but when that tactic failed, she immediately recovered and participated in the trial, displaying none of the lack of composure evidenced earlier. I am of the view her behavior was not genuine and was a transparent attempt to avoid the continuation of the trial. The latter is perhaps understandable given the allegations against her. [12] On the final day of trial, Mary's estimate of the time required for her submissions was optimistic. She had not completed her submissions by the end of the day as they were permeated with commentary and inadmissible evidence, nor had counsel had a chance to reply. At her request, she was permitted to complete her submissions in writing by March 21, 2019, with the other parties to file written replies by April 4, 2019.

However, she filed no submissions by March 21, 2019, nor did she seek additional time or explain her failure to respond. As a result, Joseph's counsel filed reply submissions that responded solely to Mary's oral submissions. [13] Much of Mary's cross-examination of Joseph, Angela, and Evelyn addressed various matters not relevant to the issues on the trial of the counterclaim. To some extent, it sought to rehash various past family disagreements, as well as events subsequent to the dates relevant to the counterclaim. However, in the interests of completing the trial within a reasonable time I indicated to Joseph's counsel that repeated objections were not necessary and that I would disregard irrelevant evidence. I have done so. Background [14] Violet Kolic and her late husband immigrated to Canada from Croatia in 1960. They lived in Nanaimo until 1970, and then moved to Victoria. Violet's late husband had a Grade 8 education and was trained as a cobbler. She worked as a cleaner. [15] Violet's husband died on March 19, 1996. He named Charles as his executor. Probate of his estate was contentious, and on February 19, 1999, Charles was removed as executor by court order. Violet eventually received about $90,000-$100,000 from her late husband's estate, with final distribution of his estate occurring in 2000. [16] In August 1996, shortly after her husband died, Violet opened her own

bank account at the Bank of Montreal in Victoria. The account number was 529 ("Account 529"). [17] Violet's will was prepared by a Victoria lawyer and is dated August 31, 1998. According to her solicitor's notes, which were prepared when they met, she owned three pieces of real property and other investments. [18] In 2004, Mary returned to Victoria after 30 years in Ontario and moved in with Violet. At the time, Charles was residing with Violet. In 2005, Charles moved out, leaving Mary and Violet living together at 157 Sims Avenue in Saanich, near Victoria ("the Sims Property"). [19] Violet died on February 10, 2013 at age 89. Apart from a $10,000 bequest to Charles, she left one-third of her assets to each of Joseph, Mary and Angela, and named Mary as her executor. The court granted probate to Mary on June 24, 2014. Mary was removed as executor by court order on July 14, 2016. Stephanie A. Sieber now serves as executor for Violet's estate. [20] The Sims Property, where Violet resided at the time of her death, was registered in her name alone. She was also the part owner of a property at 139 Battleford Avenue, Saanich ("the Battleford Property"), which was registered jointly in her name and those of her daughters, Mary and Angela. On February 21, 2013, Angela and Mary removed Violet from title to the Battleford Property by survivorship. As a result, it was not part of her

estate. [21] Account 529 was Violet's only bank account until 2004 when Mary moved in with her. Violet's pension payments were deposited directly into Account 529. Certain direct withdrawals came from that account. She did not write cheques. She would take out cash for her expenses, and her withdrawals were small. She was a woman of modest means. She did not own a car, did not travel, and was not a shopper. Despite her modest income she saved about $10,000 annually. She invested her money in safe conservative investments. Over many years, she only made one or two larger purchases for her real property, such as furnishings or roof replacements. A summary of her income, and where available, withdrawals and savings, shows: Date Income After Tax Direct Withdrawals Cash Withdrawals Annual Savings 2001 $26,206. 89 2002 $16,781. 76 2003 $28,296. 00 2004 $15,567. 37 2005 $16,837. 09 2006 $18,907. 80 2007 $19,531. 10 2008 $19,980. 92 ($1,612. 16) ($5,400. 00) $12,968. 76 2009 $20,544. 95 ($1,964. 69) ($7,714. 15) $10,866. 11 2010 $20,507. 16 ($1,705. 78) ($4,500. 00) $14,301. 38 2011 $19,005. 00 ($1,930. 82) ($0. 00) $17,074. 18 2012 $22,139. 79 ($2,902. 05) ($0. 00) $19,237. 74 2013 $3,828. 00 ($375. 89) ($1,000. 00) $2,452. 11 [22] It is admitted that in 2001 Violet had Canada Savings Bonds of at least $66,504.24, which were valued at $67,906.98 in 2002 and $48,391.29 in 2003. She

earned significant interest from her CS44 Savings bonds in 2001. In 2002, she held an undisclosed joint account with Mary that held between $10,000 and $50,000 at the Bank of Montreal ("Account 927"). [23] In 2003, Violet held $135,366.62 in Account 529 plus the above $48,391.29 in Canada Savings Bonds. In September 2003 she received $25,715.39 from the sale of a lot on Pine Street ("the Pine Property"). In the fall of 2004, she also received proceeds of $27,939.12 from another one of her Canada Savings Bonds. [24] Shortly after Mary returned to Victoria to live with her mother, Violet's simple financial life based on one bank account (Account 529), real property, and savings bonds changed. Between November 2004 and Violet's death in 2013, five additional accounts were opened in Violet and Mary's joint names or in Mary's name alone. These accounts are linked by the movement of funds between them, and will be identified by their last three digits in these reasons: 911 019 896 932 469 Joint: Violet And Mary Kolic Mary Kolic Joint: Violet and Mary Kolic Joint: Violet and Mary Kolic Mary Kolic [25] Mary and Violet opened Account 911 at the Bank of Montreal on November 8, 2004. It is in both of their names, and the relevant documentation states it is "joint with right of survivorship" unless a "No Right of Survivorship" option is ticked, which it was not. The initial deposit was

$152,980.60. Mary stated these were her funds, but produced no documents respecting the source of the funds or of such a deposit by her, nor did she provide any details or confirmatory evidence of what savings or assets she owned when she returned to Victoria in 2004. [26] On the other hand, the documents in evidence establish that in July of 2003, Violet had $135,366.62 in Account 529 and that between September 2003 and November 2003 she received proceeds from the sale of the Pine Property and Canada Savings Bonds that matured and were reinvested, totalling over $75,000. As a result, the only potential source of the funds deposited into Account 911 in November 2004 that is supported by documented evidence is that such were Violet's funds. [27] By December 2007, the $152,980.60 deposited into Account 911 when it was opened had increased to $205,140.43, an increase of about $53,000 from 2004‑2007. Mary admits that increase was due to transfers from Violet's personal account, Account 529. Accounting records also show that Account 529 had $60,179.08 in it as of January 2008, for a total on deposit of $265,319.51. [28] Mary opened Account 019 in November 2007 in her sole name. The records are incomplete, but in October 2008, $20,000 was deposited into Account 019 by way of a transfer from Account 911, held jointly with Violet. The first record showing the balance in Account 019 is

dated December 15, 2008. It shows a balance of $32,221.10. Records for Account 019 show funds continually moved into it after October 2008 from Account 911. Mary stated that she created Account 019 so she could provide funds to Angela to deal with family estate matters in Croatia. [29] Mary testified that Violet always claimed the interest income arising from Account 529 on her own tax return, while Mary claimed the interest on Account 911 and at least one other account, but she produced no copies of her tax return as evidence of this arrangement. [30] Turning to Account 896, Mary explained that this account was joint with Violet with a right of survivorship, and that Violet asked her to transfer $60,000 into it from Account 911. Mary said it was a different "type" of joint account than Account 911 and was more like a gift. [31] According to Mary, Account 932 was a joint account opened in March 2013 for receipt of rental income and for estate purposes, and Account 469 was opened in 2013 in her sole name for estate purposes. The funds used to open Account 469 were $31,986.99 from Account 896, the joint account Mary testified was "more like a gift". [32] As noted above, Mary and Violet also had a further account, Account 927, which was opened in 2002 in their joint names. Mary provided no explanation for its existence or purpose. [33] The probate application filed by Mary listed

the Sims Property as having a BC Assessment value of $391,900. It listed Account 529 as having a balance of $13,988.30 at the time of Violet's death. It made no mention of any of the other accounts or savings. Mary explained that was because she was entitled to the jointly held funds by survivorship, and other accounts were in her name alone and hence were not estate assets. [34] Mary said that all transfers of funds during Violet's lifetime were made at Violet's request, and that Violet always knew what was happening with her money. She stated Violet wanted her to have the funds she accessed because she had sacrificed to come back to Victoria to live with Violet and care for her. However, Mary acknowledged that at no time did Violet actually say to her that she would pay Mary to remain living with her. Joseph Kolic [35] Joseph described his mother as having a limited ability to speak English and testified that she did not to his knowledge read or write English. He recalled translating documents for both of his parents as a child. He testified that Violet rarely took holidays, nor did she make large purchases other that items such as a new roof on the Sims and Battleford Properties. He described Violet's health as good and said she was active in her garden and running her household. It was only in the last few years of her life that her health declined. He would assist her by

handling household maintenance and repairs for her. His access to Violet's home changed when Mary moved in, changed the locks, and did not provide keys to her siblings. [36] Joseph stated that after his mother died, he had asked Mary for a copy of Violet's will but she did not provide it. In July 2016 he wrote to Mary seeking a copy of the Statement of Assets and Liabilities and an explanation as to why Violet's bank account only had $13,988.30 in it, given his knowledge of her saving habits. Despite asking for production of the relevant bank records, it took a court order to obtain such records from Mary. Evelyn Kolic [37] Evelyn Kolic is Joseph's spouse. They married in 1979. She has a BA in Economics and works as a senior trust officer for a financial institution. She first met her in-laws in 1977. She described Violet and her husband as old country traditional Croatians. Neither was fluent in English. She confirmed they lived a frugal lifestyle, were hard-working and religious. She also confirmed they relied on their children to translate for them and she did not think they could read or write English. She noted that when watching TV, their children would have to translate for them. [38] Evelyn testified that she had a sense of her in-laws' finances after her father-in-law died, as Joseph was a beneficiary of his father's estate. She was aware that Violet received $94,000

from her late husband's estate. She had also prepared Violet's 2002 and 2003 tax returns. [39] Evelyn confirmed having attended at Violet's bank with her when Violet paid her utility bills and deposited her GST cheques. Evelyn produced a receipt showing a balance of $137,366.62 in Account 529 on July 14, 2003. [40] Evelyn was of the view that Mary was controlling Violet, as Violet stopped coming over as often after Mary moved in with Violet in 2004. Mary answered for Violet in conversations, and Mary's hoarding gradually took over the house. Evelyn confirmed that while she and Joseph previously had a key to Violet's home for emergencies, Mary changed the locks on her return and did not provide them with a key. Angela Kolic [41] Angela described her relationship with her mother as "very close". She testified that her mother was like her "best friend" and they spent a lot of time together, to the extent that others commented on it. Angela acknowledged that Violet had loaned her funds over the years and not always requested she repay them. [42] Angela confirmed that Violet needed English translated for her. For example, Angela would take Violet to doctor and dentist appointments (as Violet did not drive) and Violet always needed Angela to translate for her. Angela confirmed as well that her brother Joseph would attend to various household repairs required by Violet, such as

plumbing, heating and electrical work. [43] Angela stated that she once took Violet to her bank to open her safety deposit box, and that Violet told her she kept cash in it to avoid having to pay taxes on interest earned. Angela said that she saw bundles of $50- and $100-dollar bills in the box. This was just prior to Mary returning to Victoria in 2004. [44] Violet granted Angela a Power of Attorney after a health scare, but she never used it. [45] Angela testified that upon receipt of the probate documents, she was shocked at the $14,000 shown in the bank account, as she knew there was substantially more, including Canada Savings Bonds and Violet's inheritance from her late husband. Angela confirmed that Violet was extremely frugal with her money, noting that when they went grocery shopping together Violet had circled all of the "on sale" pictures in the food flyers. [46] Angela said that her sister Mary had told her that her name was on Violet's accounts so that Violet would have a lower tax bracket, and Mary would claim the interest as she had no income and was not working. Angela noted that when Mary moved back to Victoria in 2004, she told Angela that she no longer had to take Violet to doctor's appointments. Angela felt she was being shut out of Violet's life and testified that Violet's visits with family at Joseph's home would be cut short by Mary. [47] Angela stated

that while she understood Violet wanted Mary to move back to Victoria to be closer to her, Violet did not need someone to look after her in 2004. That only became necessary in the last two or three years of Violet's life. Mary Kolic [48] Mary obtained a bachelor's degree from the University of Victoria, a master's degree from the University of Alberta, and a PhD from the University of Toronto. She spent over 30 years living in Ontario, where she was employed as a teaching assistant, research assistant, and journal editor. She left that employment to return to B.C and move in with Violet in November 2004, at which point Violet's financial affairs began to change. [49] Mary testified that Violet asked her to move back to Victoria, to live with her and "to help her out". She stated she was Violet's primary caregiver from 2004 until she died in 2013 and that she cared for her the entire time and did the necessary yard work at the Sims Property. She said that Charles had helped with chores but could not assist with Violet's personal care. [50] Mary stated she would not have returned to Victoria if Violet had not requested she do so, as she had more work opportunities in Toronto than in Victoria. She testified she was not able to find employment in Victoria, and that when she told Violet she might have to leave Victoria to find work, Violet asked her not to leave and threatened to

harm herself. [51] Mary stated that in November of 2004 it was Violet who suggested granting her power of attorney. Mary said she then opened Account 911 in their joint names on November 8, 2004 and transferred all of her Toronto-sourced funds into it. She testified that Violet put funds into Account 911 as well, as compensation for Mary's help, as she knew Mary had given up her career for her and had little life outside their shared home. Mary stated Violet did not want to be left alone and that she did as much as she could for Violet, including taking her to appointments, doing her grocery shopping, helping her bathe and dress, making sure she took her medications, and mowing the lawn and looking after the garden. [52] Mary said they discussed her getting paid for her help in 2006, but that the discussion was not that specific. Rather, Violet told Mary she did not want to be alone and that if Mary stayed, she would help her if she could, in a way that she could. Violet did not explicitly agree to pay Mary. [53] Mary denied keeping others away and stated that Violet enjoyed their visits. She said that it was Violet who decided if and when they would visit the others, and it was Violet who would want to leave early so that she could be home by 9:00 p.m. and in bed. She said that Violet became more withdrawn and quieter as she aged, and simply did not say much at family

gatherings. [54] Mary said she had no documents showing the transfer of her Toronto funds into Account 911, but stated that she had "substantial" funds as she has always been frugal. She testified that she had funds from savings bonds ($20,000 and $5,000), funds from the sale of a home in Nanaimo ($25,000-$30,000) that she received from her grandmother, and $28,000 from her father's estate, as well as income earned in Ontario as a teaching assistant, research assistant and journal editor. [55] As noted above, Mary testified that in late 2010 Violet asked her to put the funds from Account 911 into Account 896 and as a result she moved $60,000 into Account 896, such funds being "more like a gift" and said Violet always claimed the interest earned on Account 529 while she herself claimed the interest earned on Accounts 911 and 896 on her tax returns. [56] The affidavit of the bank officer who set up Account 911 and witnessed their signatures stated it was his inevitable practice that he would explain the effect of a joint account and the fact it could have a right of survivorship if desired, and that he would explain the effect of that as well. That is, on the death of one of them the funds would go to the other and not the estate of the individual who died. He was not able to advise the Court on the source of funds deposited to that account. He confirmed that either of the

account holders had signing authority for account debits. The form used to open the account provided for a right of survivorship unless a box was ticked stating there was no right of survivorship. [57] Mary said the bank officer gave his explanation in English and that Violet's English was good enough to understand "what was being done". She did not say she translated, but said she told Violet in Croatian what he had said. [58] Mary stated this was when Angela's power of attorney was ended and she was appointed in Angela's stead, as Violet did not trust Angela given her poor debt history. Position of Joseph and Angela Kolic, Plaintiffs by Counterclaim [59] Joseph and Angela allege that after Mary returned to Victoria to live with Violet, she interfered with their relationship with Violet by isolating and controlling her. They further allege that between 2004 and 2013, Mary opened various bank accounts with Violet and additional personal accounts, resulting in Violet's funds being appropriated. [60] They allege that all of the funds in Violet's accounts belonged to her because of property sales, Canada Savings Bonds held by her, other monies she had received from her late husband's estate, and her own savings. They submit that none of the funds were Mary's. In addition, they submit there is no evidence that Violet gifted such funds to Mary. They seek a declaration of resulting

trust, damages for misappropriated funds, and punitive damages. Position of Mary Kolic, Defendant by Counterclaim [61] Mary submits the joint bank accounts are hers, both by right of survivorship and because the initial funds in the joint Account 911, used in 2008 to buy two GIC's, were funds deposited by her. She submits she deposited her own funds into joint accounts with Violet as she had no children and wanted Violet to receive the funds if she died before Violet. Mary stated that Violet intended that she would receive the funds if Violet predeceased her. [62] Mary submits that punitive damages should not be awarded and that the accusations made against her were unfounded. She seeks dismissal of the counterclaim and special costs in her favour. Issues [63] The issues requiring resolution on the counterclaim are: a. Did the money in the joint accounts and investments or in Mary's sole accounts belong to Violet? b. Did Violet gift that money to Mary or is there a resulting trust in favour of the estate over those funds? c. What is the value of the estate at the date of Violet's death? d. Should there be judgment against Mary for any amounts owed by her to the estate? e. Should funds held pursuant to injunctions be released to the estate? f. Should punitive damages be awarded against Mary? g. Costs. Credibility of Witnesses Joseph Kolic [64] Joseph was straightforward in his

evidence, acknowledging where he was not sure and careful in his responses to ensure they were accurate. Much of his evidence on cross-examination was irrelevant and did not, in any event, undermine his credibility. I accept his evidence as credible and reliable. Evelyn Kolic [65] Like her husband, Evelyn was careful to be accurate in her evidence. I found her both credible and reliable. Angela Kolic [66] Under cross-examination by Mary, the hostility between the sisters was evident. Angela was challenged on her past behavior and honesty, often saying she could not recall or could not remember. Her credibility suffered as a result. She did, however, acknowledge she was terminated in 1991 by her employer, the Royal Bank of Canada, for taking funds that belonged to her ex-boyfriend's mother, apparently at a time when she was in a dispute with her former boyfriend. She explained he had got her involved in a business and the result was that her debts became a problem. Violet provided her with the necessary funds to repay those taken, and no charges were pursued. Angela acknowledged that her behavior had been inexcusable. [67] As a result, I accept Angela's evidence only where it is consistent with or corroborated by the evidence of her brother Joseph and sister-in-law Evelyn. Mary Kolic [68] Mary's behavior leading up to and during the trial evidences an intention on her part to

delay or avoid this trial proceeding. As noted above, the litigation history reveals she has had a number of lawyers. Despite having several legal counsel, she has not produced relevant documents, instead relying on her oral evidence alone. [69] Some of Mary's explanations for her actions were non-responsive, transparent, inconsistent, and not believable. She would at times retreat to saying "I don't remember" or "I don't recall" on matters that I am satisfied she did remember. It is difficult to accept that she actually believed her assertions, given her conduct in seeking to avoid this trial and her failure to produce supporting evidence. [70] Mary's efforts to avoid review of her actions manifested itself during the trial itself when she took exception to certain draft estate documents being in the possession of counsel. She wanted to know how that came to be, and in doing so showed again her desire to prevent disclosure and avoid adjudication of the matter. [71] Mary is not a credible witness. Her behavior throughout has been suspicious. For example: a. She opposed production of bank records that were in joint names with Violet, resulting in applications to the court; b. She was involved in all of the financial transfers with Violet and kept them secret from her siblings while Violet was alive, and then was reluctant to disclose them as executor; c. She sought to delay the

trial by claiming ill health, and failed to show up at trial despite being directed to do so, claiming illness. When matters were ordered to proceed over her protests of ill health, within minutes all evidence of any health issues was gone and she proceeded to conduct competent cross-examinations (although not necessarily on points relevant to the issues at trial); d. She closed Account 911 at the same time as she was removed as executor of the estate, and the remaining $13,113.11 in Account 911 disappeared; e. She refused to disclose the existence of joint Account 927 until directed to do so by the Court; f. She did not provide an accounting of the estate until three years after Violet's death, despite many requests. When produced, the accounting was incomplete; g. She refused or neglected to provide a copy of Violet's will to her siblings until probate; h. She failed to disclose the existence of estate funds when she knew they were estate funds; i. She mingled estate funds with funds that she says were hers, and took withdrawals for various expenses from many different accounts; j. She made unknown withdrawals from funds she says were estate funds; k. She has continued living at the Sims Property for the past six years, getting a substantial benefit, and has prolonged her occupancy by allying herself with Charles; l. She refused to pay rent to the estate executor who replaced

her, instead keeping an account in her sole name to allegedly pay rent into; m. She responded to numerous questions regarding various funds with "I don't remember"; n. She denied hiding any bank accounts; o. She admitted to making a false statement to police in 2005 regarding her brother Charles. She acknowledged giving a written statement to the police at that time and stating that she told the truth in it. She confirmed she told the police that Charles had been living off Violet and that she had stopped the flow of money to him. When asked at trial if that was true, she stated she had told the police that even though Charles had not been living off Violet and had his own means. She confirmed telling the police there was a flow of money to Charles, but at trial she stated she just assumed that and denied she had returned to Victoria to put a stop to it; and p Her explanations for her actions were inconsistent, and the complex financial transactions between accounts lacked any logical explanation. Her evidence was clearly self-serving and sought to justify her entitlement as opposed to the intentions of her mother. [72] As noted in Zielinski v. Brennan, [2002] O. J. No. 2884, a proceeding involving a claim against an executor, executors are held to a high standard: [20] In most lawsuits the credibility of the parties plays an important role in the result. In this case where the

defendant is an Executor, a Trustee, a beneficiary and a member of the family, his candour should be beyond suspicion and wholly intact after detailed scrutiny. The Defendant failed the test. [73] Mary's general behavior in this litigation and her dealings with Violet while she was alive raise significant concerns respecting her credibility and reliability. As Violet's executor, she failed to satisfy the candour and credibility requirements noted in Zielinski. [74] Much of Mary's evidence was very general and turned on conversations she had with Violet. In light of my credibility findings, and the resulting lack of reliability of such evidence, I do not give such evidence any weight unless corroborated by others or by documents. [75] In addition, Mary's failure to produce relevant records in support of her evidence leads to an adverse inference that such records would not support her oral evidence. Law and Discussion [76] As noted, this counterclaim proceeded before Charles' wills variation claim in part because the value of the estate must be determined before a testator's moral duty can be considered: Sim at para.

74. In making that determination, it is the value of the estate at the time of the testator's death that is relevant: Doucette v. McInnes, 2009 BCCA 393 at para. 77. [77] As much of Violet's estate consisted of bank accounts and GIC's held either solely by her or jointly with Mary, whether they were properly part of her estate by way of a resulting trust is in issue. [78] Inter vivos dispositions and assets passing by right of survivorship are also relevant to determining whether a will should be varied and the issue of adequate provision for an adult child. In Inch v. Battie, 2007 BCSC 1249, A.F. Wilson J. stated: [69] In this case, the question is whether the inter vivos gifts, and assets received by survivorship, by Ms. Battie can be taken into account in determining whether there was "adequate provision" for Mr. Inch under the Will. Section 2 of the Wills Variation Act does provide that the court order "the provision that it thinks adequate, just and equitable in the circumstances ". ([Wilson J.'s] emphasis) It thus appears that, although transfers passing outside of the Will are not part of the estate, the effect of such gifts can be considered in determining to what extent, if any, the court should vary the distribution under the Will. [70] In DeLeeuw v. DeLeeuw, 2003 BCSC 1472, Masuhara J. did consider the assets transferred to the claimant, the surviving spouse, before

the testator's death, in determining whether he made adequate provision for her proper maintenance and support (at paragraphs 98 - 100). In Ryan v. Delahaye Estate, 2003 BCSC 1081, D. M. Smith J. considered compensation provided to the testator's son for his devotion during the parents' lifetime, and an interest-free loan made to him, in determining if there was proper maintenance and support for the other child. I thus conclude that, although inter vivos dispositions, and assets passing as a result of a right of survivorship pass outside the estate, and are thus not subject to a claim under the Wills Variation Act, the court can consider them when assessing, from the perspective of a judicious person, in the circumstances, whether a parent has met her moral obligations to an adult child. [79] As a result, the bank accounts and GICs at issue will remain relevant to Charles' wills variation claim even if they are not found to be part of Violet's estate. Resulting Trust [80] I will first address the law relating to the presumption of a resulting trust in favour of the estate and the burden on Mary to establish it was intended that she receive the funds in issue as a gift. [81] The presumption, where funds are held jointly by a testator with an adult child, is there is a resulting trust in favour of the testator. The onus is on the adult child to prove the funds were intended as a

gift. As Rothstein J. stated in Pecore v. Pecore, 2007 SCC 17 at para. 53: [T]he presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor. Otherwise, the assets will be treated as part of the transferor's estate to be distributed according to the transferor's will. [82] The process for determining a transferor's intention is addressed at length in Pecore: What Evidence May a Court Consider in Determining Intent of the Transferor? 55] Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to [determine whether the presumption has been rebutted Evidence Subsequent to the Transfer [56] The traditional rule is that evidence adduced to show the intention of the transferor at the time of the transfer "ought to be contemporaneous, or nearly so," to the transaction: see Clemens v. Clemens Estate, [1956] S.C.R. 286, at p. 294, citing Jeans v. Cooke (1857), 24 Beav. 513, 53 E. R. 456 (Rolls Ct.). Whether evidence subsequent to a transfer is admissible has often been a question of whether it complies with the Viscount Simonds' rule in Shephard v.

Cartwright, [1955] A. C. 431 (H.L.), at p. 445, citing Snell's Principles of Equity (24th ed. 1954), at p. 153: The acts and declarations of the parties before or at the time of the purchase, [or of the transfer] or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration. But subsequent declarations are admissible as evidence only against the party who made them The reason that subsequent acts and declarations have been viewed with mistrust by courts is because a transferor could have changed his or her mind subsequent to the transfer and because donors are not allowed to retract gifts. As noted by Huband J.A. in Dreger [(Litigation Guardian of) v. Dreger (1994), 5 E.T.R. (2d) 250], at para. 33: "Self-serving statements after the event are too easily fabricated in order to bring about a desired result." [59] I am of the view that the evidence of intention that arises subsequent to a transfer should not automatically be excluded if it does not comply with the Shephard v. Cartright rule. Such evidence, however, must be relevant to the intention of the transferor at the time of the transfer: Taylor v. Wallbridge (1879), 2 S.C.R.

616. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention. Bank Documents [61] While I agree that bank documents do not necessarily set out equitable interests in joint accounts, banking documents in modern times may be detailed enough that they provide strong evidence of the intentions of the transferor regarding how the balance in the account should be treated on his or her death: see B. Ziff, Principles of Property Law (4th ed. 2006), at p.

332. Therefore, if there is anything in the bank documents that specifically suggests the transferor's intent regarding the beneficial interest in the account, I do not think that courts should be barred from considering it. Indeed, the clearer the evidence in the bank documents in question, the more weight that evidence should carry. Control and Use of the Funds in the Account [64] First, it may be that the dynamics of the relationship are such that the transferor makes the management decisions. He or she may be more experienced with the accounts. This does not negate the beneficial interest of the other account holder. Conversely, evidence that a transferee controlled the funds does not necessarily mean that the transferee took a beneficial interest. Ageing parents may set up accounts for the sole purpose of having their adult child manage their funds for their benefit. [65] Second, in cases involving an ageing parent and an adult child, it may be that the transferee, although entitled both legally and beneficially to withdraw funds, will refrain from accessing them in order to ensure there are sufficient funds to care for the parent for the remainder of the parent's life. [66] Finally, as previously discussed, the fact that a transferor controlled and used the funds during his or her life is not necessarily inconsistent with an intention at the time of the transfer that the

transferee would acquire the balance of the account on the transferor's death through the gift of the right of survivorship. [83] As the Court of Appeal emphasized in Bergen v. Bergen, 2013 BCCA 492, "the actual intention of the grantor is the governing consideration" (at para. 38). [84] The burden is on Mary to establish the funds she received, either jointly or in her sole name, were a gift from Violet. In Unger v. Unger Estate, 2017 BCSC 1946, Forth J. noted: [56] Historically when a father has transferred property to his child it was presumed that the transfer was intended as a gift. This is known as the presumption of advancement. In Pecore v. Pecore, 2007 SCC 17 [Pecore], the Supreme Court of Canada, however, narrowed this presumption and held that it does not apply in cases where the child was at the age of majority at the time of the transfer. Instead, transfers to children at the age of majority give rise to the presumption of a resulting trust, which places a burden on the adult child alleging that the transfer was a gift: Pecore at paras. 22-36. [57] At the time of the transfer Lorrain was an independent adult, and therefore she bears the burden of proving that the transfer was intended as a gift. In situations involving the transfer of financial assets, such as joint bank accounts, a key question is whether the parent transferred the assets into the joint account in

order to have the child assist in managing the financial affairs of the parent or whether the parent indeed intended it as a true gift. The Court noted in Pecore at para. 45: [45] In cases where the transferor's proven intention in opening the joint account was to gift withdrawal rights to the transferee during his or her lifetime and also to gift the balance of the account to the transferee alone on his or her death through survivorship, courts have had no difficulty finding that the presumption of a resulting trust has been rebutted and the transferee alone is entitled to the balance of the account on the transferor's death. [85] In Williams v. Williams Estate, 2018 BCSC 711, Marzari J. summarized several possible scenarios: [87] With respect to joint accounts, Pecore (see paras. 45-47) establishes that it is possible for a transferor to intend to transfer only the right of survivorship, without transferring the benefit of the account during their lifetime. [88] It is the actual intent of the transferor at the time of the transfer that is determinative of whether the account is to be treated as joint during the lifetime of the transferor, whether the right of survivorship in a joint account applies, or whether a resulting trust arises for the benefit of the estate in the entire amount: Pecore at paras. 5 and 59. [89] In cases where, as the defendant alleges here, the intent

of the transferor is to grant the right of survivorship only, the gift is not the specific amount in the account at the time of the transfer, but rather whatever the account balance is at the time of death. The Court in Pecore accepted that the account balance may fluctuate over time, and though the intent at the time of transfer must be to transfer the right of survivorship, it need not be to transfer a specific amount: [50] Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e. g. Hodgins J. A. 's dissent in Re Reid, [[1921] O.J. No. 250]. Like the Ontario Court of Appeal in Re Reid, at p. 608, and Edwards v. Bradley, [[1957] S.C.J. No. 37] at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee's survivorship interest in the account balance - whatever it may be - at the time of the transferor's death, not to any particular amount. [Emphasis added in Williams.] [86] Justice Marzari then went on to review a number of cases involving joint bank accounts: [92] In Omelaniec Estate v. Manly, 2010 BCSC 1226, this Court considered the evidence of bank employees who handled the transfers. Just like the case at bar, there were two types

of such evidence. a) First, detailed evidence of a bank employee who could speak to the deceased's intention; and b) Second, financial representatives who had less specific recollections, but testified to their usual practices. [93] Both types of evidence were found to be admissible for the purposes of establishing the intent of the transferor to transfer the funds in the accounts to the joint account holder upon death. This Court also relied upon similar evidence from bank representatives as to "normal practice" in the context of advising as to the right of survivorship on joint accounts in Halfpenny v. Holien, [1997] B.C.J. No. 1486 at paras. 20, 34 and 40 and Mordo v. Nitting, 2006 BCSC 1761 (see paras. 234-236, 428). [94] However, a bank document that simply marks that the account is to be joint or with a right of survivorship, even together with evidence that this was explained by a bank representative, does not necessarily rebut the presumption of resulting trust on its own. For example, in Stade Estate (Re), 2017 BCSC 2354, the court was critical when there was no supporting or additional evidence: [83] Randall also claims that Mrs. Stade's "lawyers and bank employees told her (and I) that a right of survivorship meant I would get the money in the account when she died". Randall's counsel submits this is admissible as evidence of what was said to Mrs. Stade and Randall

at the time. However, I am unable to rely on Randall's evidence alone. Further, this specific evidence is vague; Randall does not identify these lawyers and bank employees; he does not explain when these people made the statement he claims they made; and there is no explanation as to why a lawyer would have been involved at the time the Bank Account, Term Deposit or Shares were put into joint names. For these reasons, I am unable to give this evidence any weight. [95] In Madsen Estate v. Saylor, 2007 SCC 18, Rothstein J. for the majority held that financial institution documents along with testimony in relation to them did not constitute sufficient evidence to rebut the presumption of resulting trust in that case: [18] Van Melle J. found that there was no evidence to support Patricia's position that her father intended to gift the contents of his joint accounts to her - there was no documentation to that effect, there was no clear statement to anyone and the father's conduct vis‑à-vis the joint accounts while he was alive did not support this contention. Indeed, she also did not believe much of Patricia's evidence, finding that she was "evasive and gave conflicting evidence" and that she "purposely misrepresented events" (para. 51). Van Melle J. found that the father had sole control of the assets in the accounts during his lifetime and he declared and paid all income tax on

the income generated from the joint accounts and investments. She concluded that the joint account agreement was not determinative of the father's intention. She could not find evidence of an intention to benefit Patricia financially over the other children. [27] Having regard to the lack of clarity in the documents on this critical point, I would accord them little weight insofar as the issue of beneficial entitlement to the assets in the accounts is concerned. [96] In Kyle Estate v. Kyle, 2017 BCCA 329, the Court of Appeal upheld the trial judge's finding that the presumption of resulting trust had not been rebutted, noting that bank documents are not necessarily sufficient to rebut the presumption: [29] Nor do I consider the judge's failure to analyze the long form agreement an error that is either palpable or overriding. The judge concluded it was the short form agreement that was shown to Jack. In any case, neither agreement precluded a resulting trust. They appear to me to fill the primary function of clarifying the rights of the joint tenants on one part and the financial institution on the other, affirming the bank's obligation to allow withdrawal of the funds by a surviving joint tenant. They cannot be taken as conclusive evidence that as between the joint tenants there was no resulting trust, although without doubt they establish the joint account discussed in

Pecore. [87] As a result, joint bank account documents in and of themselves are not necessarily sufficient to rebut the presumption of resulting trust. [88] In Shkuratoff v. Shkuratoff, 2007 BCSC 1061, purchasing a GIC solely with the deceased's funds was sufficient to create a presumption of resulting trust, and despite Rothstein J.'s comments "regarding the evidential effect of bank documents", a signature card on the investment portfolio did not overcome the presumption because it was "not sufficiently detailed to indicate the intentions of the Deceased upon her death" (at para. 33). [89] The presence of the giftee when the transfer is made, even in the presence of a notary, may be a factor that favours upholding the presumption of a resulting trust. In Modonese v. Delac Estate, 2011 BCSC 82, Groves J. stated: [152] The presumption is applicable since, after consideration of all of the evidence, I am of the view that the defendant has failed to adduce sufficient evidence to rebut the presumption. I am not satisfied that the defendant has met the onus of proving on a balance of probabilities that his mother intended to gift the property to him through the transfer into joint tenancy. The only evidence that exists in support of the defendant's claim is statements made by the defendant himself, whose evidence I do not accept. [153] On the contrary, there is ample evidence that,

at best, Regina was confused or uncertain about the transfer and at worst did not know what the transfer involved. Additionally, despite attending before a notary public to witness her signature, there was no real effort by that notary public to obtain the independence of Regina's thought process and her intention to transfer. In fact, the entire circumstances of the transfer, arranged by Marko, paid for by Marko, with Marko being physically present, vitiate against any level of independence of mind by Regina. The notary public did not know Regina and did not have an opportunity to get to know her under the circumstances of this transfer such that he could in any way be satisfied as to the independence of her actions. [90] The deceased, Violet Kolic was frugal and financially conservative and unsophisticated. I also find her English was poor and her ability to read even poorer. Her education was limited as she did not graduate from school in Croatia. She was a woman of simple needs and her life was her family and her home. [91] As noted, the simplicity of Violet's approach to financial matters is evident in her use of only one bank account, Account 529, from 1996 to 2004. As noted, her pension income was deposited to that account and it was from that account that she paid her bills. She did not use cheques. Her withdrawals were modest. She did not travel and she did not own a

car. Despite her limited income she was a saver, averaging over $10,000 a year. [92] Angela testified that she had seen cash in Violet's safety deposit box, which I accept as it is consistent with the nature of Violet's approach to money. Angela stated her mother did so to save on taxes. I accept that Angela was aware of such cash, as prior to Mary's arrival in Victoria in 2004, Angela often drove Violet to the bank and appointments and translated for her. There is no evidence prior to 2004 of Violet intending to change her banking practices. [93] It is troubling that after Mary returned to Victoria and moved in with Violet, multiple accounts were suddenly opened, with funds moving back and forth between them. These financial dealings were frequent and complex, and as a result much of the evidence on this trial addressed the accounting for those funds. Mary took no issue with the accuracy of the bank records, yet failed to produce them without court orders, a pattern consistent with her secretive behaviour throughout the litigation. [94] Mary testified that Account 911 was opened in 2004 because she wanted Violet to have her funds if she died. She stated she had had a brain operation in 1980 and had a family history of cancer, and in addition she had no children of her own, so on her death she wanted all the funds to go to her mother. However, in 2007 Mary opened Account 019

because, according to Mary, the funds were required for issues arising in Croatia concerning her uncle's estate. She then put funds from her mother's GIC's into Account 019. When it was put to her that this would defeat the alleged survivorship purpose of Account 911, her response was "depends on how you look at it" and she "maybe should have done a will." She then asserted the funds in Account 911 were her money. [95] Mary's evidence on this point undermines her earlier explanation that Account 911 was joint in order to have Violet receive her funds if she died, as the transfer of funds to her solo Account 019 would not permit that. I do not accept her stated general intention that Violet receive her assets by survivorship as an explanation for setting up Account 911. [96] I also consider it is probable that Mary placed funds in Account 019 for her own use. Her explanation that Account 019 was created to facilitate matters relating to her uncle's estate in Croatia is suspect given the deposit of $68,250 from Account 911 in 2009, and the fact that only one payment to Angela relating to the Croatia matter was shown. There is no evidence that the deposited funds were required to address the matter of the estate in Croatia. I conclude the funds in Account 019 were taken from Violet for Mary's own use. [97] Overall the constant shifting of funds between the various accounts opened

after 2004 is suspicious. It is complex, and counsel were put to considerable efforts to analyse the various transfers, resulting in a lengthy and detailed spreadsheet. It is sufficiently complex and confusing that I conclude Violet, with her limited education, limited English, and limitations on her ability to read English, would not have understood what was occurring. The pattern was inconsistent with her behavior prior to 2004, and inconsistent with an 85-year-old woman living a modest life. [98] I am satisfied that Mary started taking over Violet's finances for her own benefit in 2004, and that she took advantage of Violet's trust in her and Violet's general reliance on her children. The evidence of Joseph and Evelyn establishes as well that after 2004 they were shut out of Violet's life. Angela also testified that after Mary started coming to Violet's doctor's appointments with them, she was no longer party to conversations with Violet's doctor because Mary told her to stay in the waiting room. [99] In cross-examination, when asked about taking money by survivorship from accounts that she knew Violet regarded as part of her estate, Mary stated it was because she did everything for Violet and "only got $52,000" for eight years of not working outside the home. She testified she felt Violet owed her. When it was put to her that the funds she used were Violet's, not hers, she

said "guess I did all that for nothing." [100] There is no reliable evidence of Violet gifting the funds in issue to Mary. In fact, the evidence is to the contrary. Violet's will benefited all of the children. She acknowledged that Violet never offered to pay her to stay and care for her. She conceded she had no evidence that the funds in Account 911 were her money. She referred to having boxes of paperwork evidencing her life savings, but did not find any supporting documents - not, according to her, because they were not there, but because she did not keep looking. She admitted her mother regarded the jointly held funds as part of her estate yet she took the funds by survivorship saying that made it "my money." [101] As noted earlier, as executor of Violet's estate, Mary was granted probate on June 24, 2014. She was removed as executor by court order on July 14, 2016 for not fulfilling her obligations as executor and acting in a conflict of interest. The filed statement of Assets and Liabilities showed Violet's cash assets as $13,988.30. Mary did not inform her siblings of the amounts she had accessed from the various bank accounts. [102] Mary has failed to allay the clear suspicions raised by her actions. [103] She called no evidence of her alleged attempts to seek out work, and there is no evidence she sought work after Violet's death. She has not shown that she gave up

employment for her mother. [104] Mary's actions as Power of Attorney also raise concerns. It is trite law that a Power of Attorney creates a fiduciary relationship between the person making the Power of Attorney and the attorney. An attorney is not to act contrary to the interests of the donor (Andreasen v. Daniels-Ferrie, 2001 BCSC 1503 at para. 27). [105] Mary confirmed that the bank told her how to use the Power of Attorney and outlined her responsibilities as attorney, yet she denied knowing she was to keep records of its use and acknowledged she did not keep records. In my view, such statements ring hollow. She is well educated and clearly intelligent. Such claims of ignorance are inconsistent with both her background and her abilities as shown during the course of the trial. [106] In short, there is no evidence that Violet intended to benefit Mary any more than what was contained in her will. There is no evidence of an intention to gift funds to Mary. Indeed, Violet's will, in benefiting her children (other than Charles) equally regarding financial assets, demonstrates her intention was not to gift to Mary exclusively at that time nor has it been shown that intention changed. [107] The bank documents respecting joint accounts and GIC's are agreements between the bank and the account holders, not agreements between the account holders themselves. The bank manager did not

recall Violet and Mary but gave affidavit evidence of his general practice. His affidavit does not mention any translating of documents. In the circumstances of this case, the bank documents alone do not rebut the presumption of resulting trust. [108] The presumption of a resulting trust has not been rebutted. Estate Value and Damages [109] Turning to the value of Violet's estate at the time of her death, it was, as noted earlier, challenging for counsel to trace and account for the myriad bank accounts and financial transfers. Mary's lack of disclosure and inconsistent evidence and lack of candour contributed to the complexity of the task. The various accounts discussed above encompass the non-property interests of Violet's estate. I will discuss each one in turn. [110] As noted, Account 529, the account Violet used beginning in 1996, had $13,998.40 in it at the date of her death. Numerous transfers were made from Account 529 to Account 911 before she died, and the transferred sums were never returned to Account 529 or explained. Those transfers were: No. Amount Date 1. ($21,000) October 2008 2. $ 74,000 February 2009 3. 10,000 March 2010 4. 10,000 January 2011 5. 10,000 February 2011 6. 10,000 May 2011 7. 4,000 August 2011 8. 4,000 February 2012 9. 3,000 February 2013 $104,000 Total transfer to Account 911 [111] There is no evidence of such funds being used by Violet. They

were transferred to Account 911, the joint account with Mary, and into Mary's control. I am satisfied those funds are missing from the estate account and went to Mary. Those funds plus interest are due to the estate. [112] Account 911, was opened on November 8, 2004 with a deposit of $152,980.66. By December 15, 2007, the balance in Account 911 was $205,140.43, a difference of $52,159.77, the latter admitted by Mary to be from Violet's funds. Mary's claim that these funds or a portion of them were her property is dismissed. [113] Violet normally paid her cash living expenses from Account 529, the account in her sole name. However, in 2011 and 2012 such cash living expenses were removed not from Account 529 but from Account 911. Those living expenses were approximately $7,000 a year. As a result, the sum of $205,140.43 is to be reduced by $15,000. In addition, in February 2009, $60,000 was moved to a GIC held by Violet, and in 2010 a further $60,000 was transferred to Account 896 (addressed below). The remaining funds were retained by Mary. Those funds total $70,140.43 after the debit of the $15,000 and the two $60,000 transfers. Therefore, $70,140.43 plus interest shall be added to the estate at the date of death. [114] Account 896, opened in 2010 in Violet and Mary's joint names, had $61,653.99 in it on February 12, 2013, two days after Violet's death. There is no evidence

they were anyone's funds but Violet's. They were not accessed after her death, but nor were they listed on the Asset and Liability Statement. Mary now admits the contents of Account 896 at the time of Violet's death should form part of the estate. The $61,653.99 plus interest is to be returned to the estate. [115] In summary the counterclaim is successful and judgment is granted against Mary as follows: No. Amount 1. $104,000 plus interest 2. $61,653.99 3. $70,140.43 plus interest

TOTAL $235,794.42 plus interest [116] The sum of $235,794.42 shall have added to it the $13,998.30 from Account 529 that was originally included in the probate materials. [117] Any additional remedy for Mary's failure to act appropriately after her mother's death or taking of funds while acting as executor remains to be dealt with in the wills variation action. Amounts Held by Injunction [118] The following amounts have been held by injunction: Account No. Amount 529 $726.44 469 $31,486.51 932 $45,645.33 [119] As the $31,486.51 in Account 469 was transferred from Account 896 after Violet's death, and as Mary has now admitted that the funds in Account 896 are part of the estate and the Account 489 funds are derived from Account 896, these funds should be released to the estate immediately and credited to Mary against the sums due from her to the estate in this proceeding. [120] Account 529 is the noted estate account, and its contents should be released to the estate. Account 932 should also be released to the estate and credited towards any rent that may be found to be owing for Mary's occupation of the Sims Property following Violet's death. Allocation of estate expenses incurred and appropriate rent should be dealt with in the probate action. Punitive Damages [121] Joseph and Angela seek a $10,000 punitive damages award. They submit Mary obtained a significant benefit from

taking Violet's funds and acted contrary to the estate's best interests for her own financial gain. In addition, they submit she breached her duties under the Power of Attorney and only produced information concerning the estate when forced to do so. Mary opposes the awarding of punitive damages. [122] Punitive damages are awarded in exceptional cases where "malicious, high handed" conduct occurs that offends the court's sense of decency. Such conduct must represent a marked departure from ordinary standards of decent behavior. In Whiten v. Pilot Insurance Co., 2002 SCC 18, the Supreme Court of Canada stated: [94] (1) Punitive damages are very much the exception rather than the rule, (2) imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. (3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant, (4) having regard to any other fines or penalties suffered by the defendant for the misconduct in question. (5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be

inadequate to achieve the objectives of retribution, deterrence and denunciation. (6) Their purpose is not to compensate the plaintiff, but (7) to give a defendant his or her just dessert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation (denunciation) of what has happened. (8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and (9) they are given in an amount that is no greater than necessary to rationally accomplish their purpose. (10) While normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a "windfall" in addition to compensatory damages. (11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient. [123] Mary benefited from taking funds from Violet and did so without the knowledge of her siblings. She sought to hide what she had done from her siblings for years after Violet died, and court orders were necessary to disclosure of relevant records. She acted contrary to the estate's interests for her own financial gain, a pattern seen throughout the various financial transfers and in her

failure to act properly as Violet's attorney. Indeed, Mary's continued intransigence in the litigation process and her attempts to avoid trial, along with her taking exception to counsel having documents in his possession during trail, continue a pattern of secrecy in an effort to avoid review of her conduct, and reinforce my findings regarding her conduct [124] In Zielinski, a punitive damage award of $15,000 was made (at para. 28). [125] In my view, Mary's misconduct justifies an award of punitive damages in the sum of $10,000. Costs [126] Joseph seeks special costs either against Mary personally or from the estate. Counsel wish to address costs once in receipt of these reasons. They have liberty to apply. [127] Mary's approval to the form of judgment is dispensed with. "The Honourable Mr. Justice Punnett"