Month: November 2021

B.C. Case Comment: Person Occupying Estate Property May be Required to Pay Occupational Rent

November 30, 2021

I am often asked by clients (whether they are the executor of an estate or a beneficiary) whether a person occupying real property which was owned by the deceased and has become an estate asset must pay rent for staying in that property.

Where an estate holds real property, there will usually be a period of time before the executor or administrator is ready or able to deal with the property, whether they intend to transfer the property to the beneficiary(ies) or sell the property and distribute the sales proceeds.

This issue is straightforward where, for example, one spouse dies, and the surviving spouse is the sole beneficiary of the estate and sole occupier of the property. The surviving spouse would not pay rent to occupy the property, because any rent would ultimately go back to that spouse as the beneficiary of the estate.

However, matters are usually not that straightforward. For example, a common scenario is the death of a parent, and one of their children resides in their property (or seeks to move into the property after the parent’s death). The property will eventually be sold so that the proceeds can be distributed between the deceased’s children, but in the meantime one of the children gets the additional benefit of getting to live in the property.

Another example is where the deceased was the sole occupier of the property, and rather than leave the property vacant someone moves in. This may be one of the beneficiaries, or even the executor.

The issue may be further complicated if the person occupying the property is paying expenses relating to the property (which would otherwise be payable by the estate), or if they allege that they are occupying the property for the benefit of the estate (so that it doesn’t remain vacant).

Where someone occupies and has the benefit of property belonging to the estate, they may be required to pay occupational rent to the estate. This may take the form of a debt payable to the estate, or a set-off from their share of the estate.  The concept of occupation rent is tied to unjust enrichment, as well as trespass. To permit someone to use estate assets results in an enrichment, to the detriment of the estate. Occupational rent will be considered where there is a claim of unjust enrichment and it is just and equitable to impose the remedy.

The issue of occupational rent was recently considered by the B.C. Supreme Court in In the Matter of the Estate of Euphemia Reagh, Deceased, 2021 BCSC 1807.  In Reagh, the deceased made a will dividing her estate equally amongst her four children. One of the children (“Randy”) was named as executor.

Randy and his family lived in the basement suite of the Deceased’s residence in Burnaby for 12 years prior to the Deceased’s death. The year before her death, the Deceased moved into a care facility, but returned to the Burnaby property after a short period of time. Upon her return, Randy and his family were now occupying the main floor. Randy claimed he paid his mother $1,000 per month in rent while she was alive, and he paid this amount for the first 12 months after her death.

After her death, there was a dispute concerning the appropriate rent to be paid. For a period of time (until the property was sold), Randy increased the amount paid for rent to $2,150 per month. Randy maintained the property, and claimed it as his principal residence, saving the estate $50,000 in taxes after its sale.

The Court agreed that $1,000/month in rent was too little. While there was an email discussing rent of $3,000, there was no confirmation that this was agreed to, and so no agreement was established. While the evidence of market rent before the court was “less than perfect”, the court was satisfied that $2,000/month in rent was more appropriate. Although the court was flexible in this case, a party who is making a claim for occupational rent should bring evidence as to the appropriate amount of occupational rent (i.e. market value).

It was just and equitable in this case that the executor pay occupational rent at market value. The executor was ordered to pay $12,000 (the difference between the $1,000 paid and the $2,000 rent which was appropriate, for 12 months).

This case serves as a reminder that executors (or others) cannot expect to occupy estate property rent-free, or for below market rent. If they try to do so, then the remedy of occupational rent may be available.

B.C. Case Comment: Court Resolves Dispute Over Sentimental Item to Avoid Further Estate Litigation

November 18, 2021

When an estate is being distributed, it is not uncommon for disputes to arise over sentimental objects that belonged to the deceased, often of low or no monetary value.  On occasion, a dispute over a sentimental family heirloom may be the only truly contentious issue between the beneficiaries.  Parties may agree on the distribution of the majority of the estate (i.e. the monies, real estate, etc…), but refuse to budge on certain of the deceased’s personal possessions.  In some cases, parties may become entrenched in their positions on the distribution of a sentimental object, and that hostility may result in a much larger (more expensive) dispute over the estate.

This could have been the case in the recent B.C. Supreme Court decision in Rhodes v. Myers 2021 BCSC 2043.  In Rhodes, a will-maker made a will dividing her estate into four equal shares, with each share to be given to one of her four adult children. Two of the children were named as co-executors of the estate.

There were disputes and disagreements between the children prior to their mother’s death, which only intensified after her death.  One of the co-executors sought the removal of the other co-executor (“Donald”).  Donald consented to the relief sought, including his removal, on the condition that his brother (“Allan”) receive the deceased’s bolt ring.

The ring was made by the deceased’s husband out of a bolt. The deceased never took it off. The Court observed that it clearly had “tremendous sentimental value to the children, but no monetary value”. The bolt ring was identified by the Court as the “sticking point” in the children being able to resolve the estate issues.

The petitioner (the other co-executor, “Patti”) claimed that the deceased gave her the ring sometime in the last months of her life.

The Court held that since the ring was an asset of the estate, they had jurisdiction to deal with it, and dealing with it now may enable the court to move forward with concluding the estate without further litigation. This is consistent with the object of the Supreme Court Civil Rules of securing the just, speedy and inexpensive determination of every proceeding on its merits. The bolt ring, which has no monetary value, should be dealt with now, if it will avoid further proceedings later.

The Court considered the circumstances of the ring in detail, and concluded that the deceased intended the ring to go to Allan, and that this was well-known to all four siblings. The deceased lacked the capacity to gift the ring in the last months of her life. In this regard, the Court held that a geriatric consultation assessment was compelling. As a result, the ring was an asset of the estate, and Patti was directed to distribute it to Allan in accordance with the Deceased’s wishes.

In settling the issue of who was to receive the ring at this early stage, the Court likely assisted the parties in avoiding further time consuming and expensive estate litigation.

B.C. Case Comment: Court Refuses to Remove Sister as Trustee of Brother’s Trust

November 12, 2021

What can you do when you want to provide for your children equally, but you are concerned that one or more of your children may not be able to handle their share of your estate? If a parent has these concerns, they may decide to put a share of their estate in trust (often in a trust set out in the will itself). However, the parent must decide who will act as trustee and manage that money on behalf of their child.

One option which may seem attractive initially is to make another child the trustee. However, the result is that one sibling is in control of the other sibling’s share of the estate.   This often leads to tension, disputes, and ultimately litigation.

This was the case in the recent B.C. Supreme Court decision of Parsons v. Zaranski 2021 BCSC 2092. In Parsons, the Deceased had three children. He left his estate to his three children in equal shares, but he left one son’s share in a trust. His daughter was named as trustee of this trust. The trust was discretionary, with so much of the income and capital to be paid as the trustee decides is advisable for the care, maintenance, and education and benefit of the beneficiary during his lifetime.

Unsurprisingly, disputes arose. The beneficiary sought to remove and replace his sister as trustee. His complaints fell within the following categories;

  1. Failure to report on the activities of the trust;
  2. Failure to provide adequate funds during the beneficiary’s times of need; and
  3. Making an improper investment with trust funds from which she may derive a personal gain

The overarching concern for the court on an application to remove a trustee is whether the trustee’s conduct is putting the assets of the trust or the purposes of the trust in jeopardy. Conflict or friction between the trustee and the beneficiaries, without more, is insufficient to justify removal. The decision to remove a trustee must not be undertaken lightly, and should only be done in the clearest of cases and when it is necessary to protect the beneficiaries or the purpose of the trust.

The Court dismissed the application to remove the sister as trustee.

First, the Court found that the sister provided regular and complete reporting to her brother.

Second, the Court held that the sister responded appropriately to her brother’s requests for assistance. The case is a reminder that the exercise of discretion by a trustee pursuant to the terms of a trust is entitled to deference. In Parsons, the Court put it this way (at para. 78): “I am satisfied that Tammy could, in exercising her discretion, have paid more to William through the years, but I am also satisfied that she could have paid less.”

Finally, while the Court had some concerns about an investment made by the trustee with trust funds (it was an “error in judgment”), it was made in good faith and the trust was never at risk because the trustee would have reimbursed the trust if the investment had failed.

This case is a cautionary tale of the animosity, resentment and tension which you may create by putting one child in charge of another child’s trust. However, it also serves as a reminder to beneficiaries that animosity, resentment and tension is usually not enough, on its own, to remove a sibling as your trustee.

B.C. Case Comment Update: Alleged Victim of Elder Abuse Still Not Forced to Undergo Further Mental Capacity Assessment

November 4, 2021

I previously wrote about the B.C. Supreme Court decision in Hambleton (Litigation Guardian of) v. Hambleton 2021 BCSC 1155. In Hambleton, the Court refused to grant an order sought by a daughter that her mother attend a more extensive medical capacity evaluation. My previous post on the decision can be found here: https://www.bcestatelitigation.ca/case-comment/b-c-case-comment-alleged-victim-of-elder-abuse-not-forced-to-undergo-further-mental-capacity-assessment/

The daughter took the position that her mother suffered from severe dementia, and that she lacked capacity to make decisions regarding her financial affairs and was subject to undue influence by her other daughter. The mother retained her own lawyer and applied to strike the action which was brought in her name by her daughter (and to remove her daughter as litigation guardian).

The Court was satisfied that a less extensive assessment of the mother was adequate. It is an invasion of an individual’s rights to require them to undergo a mental capacity assessment, and the court should not make such an order without sufficient evidentiary basis for doing so. In this case, the mother had obtained an assessment to address the Court’s concern about capacity, and requiring her to undergo a further mental capacity assessment would not be appropriate.

The daughter appealed the result. The appeal has not yet been heard. However, pending the appeal the daughter applied for a stay of proceedings – an order that nothing happen in the underlying litigation until the appeal has been heard.

The Court of Appeal dismissed the application for a stay of proceeding.  The reasons can be found here: https://www.bccourts.ca/jdb-txt/ca/21/03/2021BCCA0377.htm.

The Court observed that the merits of appeal were “extremely low.” The order of the court below was a discretionary one, entitled to deference. It also would not bind the judge who ultimately would hear the application to remove the daughter as litigation guardian.

The Court also looked at irreparable harm and the balance of convenience. These factors favored the mother. She was currently a party to litigation that she wanted no part of, brought ostensibly on her behalf of by her daughter, who she does not want to represent her as litigation guardian. The mother’s personal autonomy was in the balance, and she was over 90 years old. To order a stay and keep the mother in the ligation until this issue was determined would cause her “much harm.”

This decision is another example of the courts protecting personal autonomy and the presumption of capability.