Recent B.C. Case Illustrates Importance of Documenting Transactions Between Family Members

All too often, transactions between family members (loans, gifts, property transfers, etc…) are not properly documented or are not documented at all. I see this repeatedly in transactions between parents and children.  The other children (i.e. the transferees’ siblings) seek to challenge the transaction after the parents’ deaths, so that the transferred asset forms part of the parents’ estates, causing fractures within the family.

This was the case in the recent B.C. Supreme Court decision in Cadwell Estate v. Martin 2021 BCSC 1089.   The Court observed:

[1] As this case shows, when a significant financial transaction is casually entered into between parents and their adult children, tragic consequences may occur, if the terms of the transaction are not clear to the members of the family at the outset, or are not properly, legally documented

In 2004, Bill and Ruth Cadwell (the parents) paid $170,000 to their daughter and her husband (the defendants). The payment was used to assist with the purchase and construction of a new house by the defendants. The house was modified to include a suite suitable for the parents.

The house was built, and the defendants and the parents moved into the house in 2005. No agreement was put in writing. Bill Cadwell died in 2007. Ruth Cadwell lived in the suite for 12 more years until she died in 2019.

The $170,000 payment lead to “considerable friction over the years” between various family members, and eventually lead to this litigation.

The plaintiff (the executor of Ruth Cadwell’s estate) claimed that the payment was an equity investment in the property, or that a resulting trust in the property was created. In the alternative, the plaintiff claimed in unjust enrichment, or for repayment of the amount as a loan, with interest.

The defendants said that the payment was a loan, which was paid off by notional payments of rent applied against the loan over the years. In the alternative, they argued that the loan claim was statute barred because the limitation period had expired.  The defendants relied upon a loan repayment schedule document initialed by Bill Cadwell. The plaintiff argued that this document was a forgery, created for the purpose of the litigation.

The Court concluded that there was no equity investment. While Ruth may have referred to the payment as an “investment”, that was not sufficient to establish that the parents were investing the $170,000 to acquire a beneficial interest in the property. The Cadwells had some business experience. They knew they were not going to be registered on title. There was no evidence of any discussions regarding proportionate ownership shares, sharing of expenses, etc…  On the evidence, the parents did not expect to have an ownership interest in the property. Instead, they expected to remain in the suite, free of charge, for some period of time, and the parents would be able to rely upon the defendants for help as needed.

The Court concluded that the parents intended the $170,000 payment to be a loan. The next issue was whether there had been repayment. The Court concluded there was no agreement for repayment by way of notional rent.

The Court held that the repayment schedule document was a forgery: “it represents the agreement that the defendants wish they had made with the Cadwells, but did not make.” It’s existence did not make sense in the circumstances, which included a conversation that Ruth surreptitiously recorded between her and one of the defendants, in which she asked for the return of her money.  The plaintiff went so far as to call an expert in computer fonts, who testified that the font used for the repayment schedule document did not reach public use until January 2007 (the defendants claimed the document was prepared in 2004).

However, the defendants were fortunate because the Court held that the claim was statute barred. The former Limitation Act applied to the claim, and so the six-year limitation period for the demand loan began to run on the day the loan was made. It should be noted that the current Limitation Period provides for a two year limitation period, which starts on the date that a demand is made.

As a result, the defendants did not have to repay the $170,000 amount due to the passage of time, even though they attempted to rely upon a forged document at trial (although they were not awarded their costs at trial due to their conduct).

There is a lesson here.  As observed by the Court:

[11]         As I am confident that everyone involved now recognizes, it would have been quite easy to document an agreement about the payment at the outset, thereby avoiding years of conflict.

Case Comment: No Executor’s Fee for Executor who Breached Fiduciary Duty

Under the B.C. Trustee Act, an executor is entitled to remuneration for administration of an estate, unless the Will states otherwise. However, executors should not expect to receive a fee regardless of their conduct. Executor misconduct, for example breach of fiduciary duty, may disentitle the executor to any fees, despite their efforts and time spent to administer the estate.

The B.C. Supreme Court recently considered executor misconduct in the context a passing of accounts and approval of executors’ fees in Zaradic Estate (Re) 2021 BCSC 1037. In Zaradic, The sole beneficiary was a friend of the deceased. The joint executors were a husband and wife, who were also friends of the deceased.  The executors sought to pass their accounts, which included payment of an executors’ fee.

The Trustee Act provides that an executor is entitled to remuneration of up to a maximum of 5% of the gross aggregate value of the estate (including all capital and income) unless the will provides otherwise. In Zaradic, the Will allowed for the executors to claim a fee up to 10%.

The criteria for determining an appropriate fee includes:

  1. The magnitude of the trust;
  2. The care and responsibility involved;
  3. The time occupied administering the trust;
  4. The skill and ability displayed; and
  5. The success achieved in the final result.

The beneficiary argued that the executors ought to be denied any fees for administering the estate by reason of their alleged breach of trust in attempting to sell the deceased’s house to their daughter for roughly 50% of its market value. The beneficiary had to commence a legal action and obtain a certificate of pending litigation to prevent the sale of the deceased’s home. The executors had also loaned their daughter $13,000 of estate monies to ensure she had enough money to complete the sale.

The executors tried to place the blame on (1) their experience with property ownership generally, and (2) a notary who allegedly advised them to take this course of action. The property eventually sold for fair market value, but the beneficiary incurred legal costs in order to make sure that this happened.

The Will provided as follows with respect to remuneration:

. . . My trustees may claim remuneration for acting as Trustees in the amount of Ten Percent (10%) of the net value of the residue of my estate to be shared equally between them, in lieu of any Executor or Trustees Fee’s.

The executors argued that this wording meant that they were entitled to a 10% fee regardless of their conduct. The Court did not agree. The Will said that the executors may “claim” for remuneration, but the amount of the fee was not fixed and had to be approved by the court if the beneficiary did not agree.

In terms of the amount of the fee, the Court concluded that the actions of the executors in relation to the attempted sale for less than market value to their daughter were “an egregious breach of their fiduciary duty,” which disentitled them to any fee.

The executors were denied any fee for their time spent administering the estate.  While there was a measure of care and responsibility involved in handling the estate, the executors’ efforts were a “dismal failure” when it came to the skill and ability displayed and the success achieved.  In other words,  all of their time and effort spent on the estate was eclipsed by their breach of fiduciary duty.

What I’m Reading: Interesting Estate Litigation Articles for May 2021

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. Sydney Osmar at Hull & Hull LLP (in Ontario) discusses a recent Ontario case estate which applied the public policy doctrine that a person who has committed murder cannot benefit from his or her crime (including from the estate of the person they have murdered): https://hullandhull.com/2021/05/the-criminal-forfeiture-rule-and-the-doctrine-of-acceleration/.  Stan Rule at Sabey Rule LLP (Kelowna) also commented upon this case: http://rulelaw.blogspot.com/2021/05/the-bank-of-nova-scotia-trust-company-v.html
  2. Debra Curcio Lister and Jordon Magico at Miller Thomson discuss the importance of obtaining competent legal advice, with reference to recent decisions of the courts in Alberta: https://www.millerthomson.com/en/blog/mt-estate-litigation-blog/why-competent-legal-advice-is-fundamental/
  3. Lauren Liang and Polly Storey at Clark Wilson discuss rectification of a will when it does not appear to accomplish the intentions of the deceased’s person: https://www.cwilson.com/rectifying-wills-under-s-59-jamt-estate/
  4. Kira Domratchev at Hull & Hull LLP (in Ontario) writes about the doctrine of righteousness, the circumstances in which a concern arises where a person who is instrumental in drafting a will also is to receive a benefit under that will: https://hullandhull.com/2021/05/the-doctrine-of-righteousness-and-its-place-in-estate-litigation/
  5. Janis Ko at Onyx Law wrote about entitlement to costs in contested committeeship proceedings under the Patients Property Act, in the context of a recent decision of the B.C. Supreme Court: https://onyxlaw.ca/punitive-special-costs-in-bc-committeeship-proceedings/

Happy reading!

Disputes Between Co-Trustees: Adding a Trustee to Break the Deadlock

I am often contacted by one co-executor or co-trustee, who is frustrated with the conduct of the other co-executor or co-trustee. The client feels strongly that they cannot continue to work with the other person. These concerns commonly arise when siblings are asked to work together to administer a trust or estate, most often when there are two co-trustees or co-executors. In those circumstances, if there is a disagreement then there is no majority, resulting in a deadlock.

The concerning conduct expressed by the client falls on a spectrum. There may be concerns about misappropriation of trust assets, which would fall at the more serious end of the spectrum. The co-trustees may simply not like each other and not enjoy working together, which would be at the less serious end of the spectrum.

Usually a client’s concerns fall somewhere in the middle. Often the co-trustees will be critical of one another. They may each have a laundry list of concerns and criticisms. When making recommendations to a client as to how to proceed, the same considerations usually arise.  Has the conduct in a given case reached the point that removal and/or replacement of a co-trustee or co-executor is necessary? Or are the disagreements so trivial that the parties are expected to resolve matters and work together without the assistance of the court? There is also the question of remedy.  Should a trustee be removed (and if so, which one), or should an additional trustee be added to break the deadlock?

The B.C. Supreme Court recently considered these issues in In The Matter of The Estate of Jean Maureen Dahle, Deceased 2021 BCSC 718. The Court considered a dispute regarding the administration of an estate and a trust. In her will, the deceased named two of her six children, Tim and Martin, as co-executors. They were also named as co-trustees of a trust established in the will for the benefit of their brother with developmental disabilities (Nickey).

Tim and Martin both brought applications to have the other removed as executor of the will and trustee of the Nickey trust.

Before judgment (but after submissions), the brothers reached an agreement that a trust company would be appointed as a third trustee of the Nickey Trust, and that a majority of the three trustees will have decision making power. This would break the deadlock between the two brothers.

However, they were unable to reach a similar agreement with respect to administration of the estate. Neither of the brothers had sole decision-making power. They were required to act unanimously.  There was a “significant sense of distrust” between the brothers, which had continued for five years (since the deceased’s death) and had delayed administration of the estate.

Each brother provided a long list of complaints about the other. The Court observed that neither brother had conducted themselves completely appropriately, and they both were critical of the other for behavior that they themselves engaged in.

Much of the animosity between the brothers came from differences of opinion regarding what was in Nickey’s best interests, including living and care arrangements.  Other complaints included dealing with real property without unanimous agreement – dealing with rental monies, handling repairs and maintenance, and entering into tenancy agreements and collecting damage deposits.   There was also a criticism of the “tone” of certain communications. The Court agreed that they were “confrontational”, but did not warrant removal. There were other examples of stubbornness and refusal to communicate property. However, the Court also observed that the brothers were capable of agreeing on matters when required to do so.

The judgment includes a helpful discussion of the law on removal and replacement of executors and trustees. A testator is entitled to choose their executors and trustees. The court should not interfere lightly with this decision. Categories for removal of an executor include (1) endangerment of trust property, (2) want of honesty, (3) want of proper capacity to execute duties, and (4) want of reasonable fidelity. The welfare of the beneficiaries is a key consideration. Unreasonable delay and failure to distribute an estate may be grounds for removal. Executors are not expected to be perfect, and not all acts of misconduct will lead to removal. Animosity among co-executors may be relevant, but will not be determinative. This may be relevant to an ability to carry out their duties effectively and efficiently.

In Dahle, the Court concluded that it was in the best interests of the beneficiaries to add a third party professional trust company as an additional executor of the estate. The Court observed that adding a third trustee, and not removing either of the other two trustees, would respect the deceased’s wish to have her two children involved in decisions relating to admisntration of her estate. This arrangement would also encourage the brothers to act reasonably, failing which the unreasonable brother will be overruled by majority.

Case Comment: A Party who Transfers Property to Avoid Creditors May Not Later Reclaim It

If you transfer property to family members or other persons to avoid your creditors, you cannot assume that you are entitled to demand the return of the property at a later date.

The B.C. Supreme Court recently considered this issue in Pattinson v. MacDonald 2021 BCSC 652.

In 1986, Ms. Pattinson transferred a 160 acre farm property to her children, the defendants. She now sought an order that the property was held by the defendants in trust for her.  She sought the return of the property, along with an accounting of rents, profits and income received by the defendants in respect of the property.  She also claimed that her children were unjustly enriched by her upkeep of the property.

Her children claimed that they owned the property as a result of the 1986 transfer. They claimed that (1) they paid consideration for the transfer, and (2) the transfer to them was a fraudulent conveyance and/or intended to avoid claims by her creditors.

Ms. Pattinson claimed that the property was transferred upon legal advice “to protect the lands from frivolous claims … and to ensure the land stayed in control of the family.” She had been named as a defendant in family law proceedings commenced against her common law spouse (by his ex-spouse).

The children asserted that the property was transferred into their names (1) under an agreement with Ms. Pattinson’s mother involving the exchange of gold wafers, and (2) to avoid various creditors. They claimed that they had knowledge of the transfer in 1986 when it was made. They did not ask for the property to be transferred into their names.  They were not asked to hold the property in trust and did not agree to hold it in trust.

Ms. Pattinson denied that gold wafers were provided in exchange for the transfer. She claimed that her mother gifted the gold wafers to her. The issue of whether consideration was paid for the transfer was relevant to the issue of whether the property was held in resulting trust. Where a transfer is made for no consideration, the onus is on the recipient (in this case the children) to prove that a gift was intended. In Pattinson, the defendants had not met the onus required to prove that consideration was paid.

However, the court held that even where no consideration is paid for the transfer, a party who transfers land to avoid creditors may not reclaim it.

It was clear that the purpose of the 1986 transfer was to avoid claims. The court held that it was likely that the children were named by their middle names on the transfer document to avoid creditors knowing that she transferred property to her children. She also failed to refer to owning property in bankruptcy proceedings.

Ms. Pattinson was successful in protecting her property from creditors, but she could not now seek the return of the property 35 years later. She also failed to show the elements of unjust enrichment, and even if she had, her claim would have been dismissed on the basis that she delayed in making her claim until 33 years after the transfer.

Transferring assets for the purpose of avoiding creditors carries significant risk. Creditors may have certain remedies against the assets despite the transfer, but there is the additional risk that transferee will refuse to return the property once the creditors are no longer a concern.

Appeal of B.C. Wills Variation Judgment Results in Equal Treatment of Children

Just over a year ago, I wrote about the decision of the B.C. Supreme Court in Scurek v Scurek 2020 BCSC 450.  In that case, the Court considered whether a testator could discharge his moral obligation to his adult daughter by benefiting her sons instead of her. In other words, can you “skip” a generation, and leave your estate (or some part of it) to your grandchildren instead of your children?  My previous post can be found here:  https://www.bcestatelitigation.ca/wills-variation/skipping-your-children-and-leaving-your-estate-to-your-grandchildren-the-court-may-vary-your-will/

In Scurek, the deceased had two adult children, a son and a daughter. His daughter (the plaintiff) had two sons, the deceased’s grandchildren.  Rather than dividing his estate equally between his two children, the deceased decided to leave one half of his estate to his son, and the other half of his estate to his daughter and her two sons in equal shares.  As a result, the daughter received a 1/6 share instead of a 1/2 share

The trial judge varied the will to provide as follows: ½ to the plaintiff, 2/6 to the brother, and 1/12 to each grandchild.

Last week, the B.C. Court of Appeal allowed the brother’s appeal of this decision, in Scurek v. Scurek 2021 BCCA 178.

The Court of Appeal observed that while wills variation claims by adult independent children are challenging, they had no difficulty concluding that the will did not provide adequately for the plaintiff.  Some variation was required.  However, the Court held that the trial judge should not have varied the will such that the plaintiff would receive more than her brother.  This would impinge upon the testator’s autonomy to an unnecessary degree.

Instead, each of the grandchildren was to receive a 1/12 share (as awarded by the trial judge), and then the plaintiff and her brother were to receive equal shares of the remainder (i.e. 5/12 each).  This result is consistent with a reasonable expectation that children ought to share equally in a parent’s estate.  However, it should be kept in mind that there is no requirement that children be treated equally.  A court will not necessarily vary a will to remedy unequal treatment of children.  Again, every wills variation case must be decided on its own unique set of facts.

What I’m Reading: Interesting Estate Litigation Articles for April 2021

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. Trevor Todd at Disinherited.com discussed a recent case in which the B.C. Supreme Court varied a will to make provision for two twins who were abandoned by their father and were explicitly disinherited in his will.  The twins were awarded 70% of the residue of the estate (which was valued at approximately $880,000):  https://disinherited.com/wills-variation/wills-variation-abandoned-twins-awarded-70-estate/
  2. Janis Ko at Onyx Law wrote about elder abuse and financial predators, with reference to a recent B.C. Supreme Court decision on these issues: https://onyxlaw.ca/family-of-bc-senior-with-dementia-sues-alleged-financial-predator/
  3. James Steele at Robertson Stromberg in Saskatchewan discussed an article and case comment on the issue of liability of an executor for failing to supervise their co-executor: https://skestatelaw.ca/2021/04/07/can-someone-be-held-liable-for-the-misdeeds-of-a-co-executor/
  4. Gillian Fournie at de Vries Litigation LLP (Ontario) discussed the issue of occupational rent – whether an estate can charge rent to the occupant of an estate asset until it is sold or otherwise distributed: https://devrieslitigation.com/occupation-rent/
  5. Ian Hull at Hull & Hull LLP (in Ontario) wrote about potential liabilities that you may assume when you agree to be an executor or trustee:  https://hullandhull.com/2021/04/an-estate-trustee-executor-role-comes-with-some-liability/

Happy Reading!

Limitation Periods: When was the Claim “Discovered”?

I am often contacted when a loved one has died, and a family member has concerns about what happened to the deceased’s assets, which ought to have formed part of their estate. There may be much less than expected, or a particular asset may be missing or may no longer be in the deceased’s name. Monies may have been misappropriated using a power of attorney, or procured by undue influence. The family member may have understood that property transferred during the deceased’s lifetime was to be held in trust for certain beneficiaries, but the recipient/transferee now takes the position that the transfer was a gift and they are entitled to keep it.

Sometimes these transactions and transfers have taken place years or even decades before the deceased’s death, but they are not discovered until after the deceased’s death. Sometimes everyone is aware of the transfer itself, but only discover later that the recipient intends to argue that the property belongs to them and is not held in trust. Clients want to know whether it is too late to go back and challenge transfers if they happened many years ago.

This issue was recently considered by the B.C. Supreme Court in Maussion v. Maussion 2021 BCSC 530. Maussion involved a dispute between children with respect to their parents’ estates.  The parents died in 2012 and 2016. The plaintiff son alleged that his sister improperly received assets from the parents during their lifetimes, which were to form part of the estate. She allegedly used a power of attorney granted to her to sell property or transfer it to herself (in 2004, 2005 and 2016). The action was not commenced until January 31, 2019.

The defendant denied the claims on the basis that all transfers were gifts to her. She also applied for dismissal of the claims on the basis that they were statute-barred, i.e. that the action was commenced after the expiration of the limitation period.

The matter was governed by s. 6 of the Limitation Act, SBC 2012, c. 13, which provides that a court proceeding in respect of a claim must not be commenced more than two years after the date on which the claim is discovered. A claim is “discovered” on the first day on which the person knew or reasonably ought to have known:

  1. that injury, loss or damage had occurred;
  2. that the injury, loss or damage was caused by or contributed to by an act or omission;
  3. that the act or omission was that of the person against whom the claim is or may be made; and
  4. that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

There are specific provisions relating to the discovery of fraud or trust claims. These claims are “discovered” only when the beneficiary becomes fully aware of certain matters. An action to recover trust property from a trustee (for example a party who holds property in resulting trust) does not begin to run until the beneficiary becomes fully aware of the fraud, fraudulent breach of trust, conversion or other act of the trustee on which the action is based.

The defendant in Maussion argued that a letter from the plaintiff’s lawyer in 2011 expressing concern about her conduct showed that the plaintiff “discovered” a potential claim by at least 2011. However, the court concluded that the 2011 letter addressed a completely different issue. Instead, a February 2017 letter from the defendant’s lawyer, in which it was stated that the transfer of certain property was a gift, was the date at which that the plaintiff should have been aware that she had a claim. As a result, the claim was commenced within the limitation period, and the application to dismiss the claim as statute-barred was dismissed.

If you become aware of concerning conduct many years after the suspicious transfer or other event occurred, you may still have a potential claim that has not expired. It will depend upon when you discovered the claim.

Case Comment: Estate Recovers Assets Misappropriated by Power of Attorney

Clients often contact us following the death of a family member, when they are surprised to discover how little is left in the deceased’s estate. While a capable independent adult is entitled to deplete their estate during their lifetime as they see fit, there may be concerns with elderly, incapable or otherwise vulnerable persons and “missing” assets. In the most egregious cases, there may be misappropriation of funds by a person in a position of trust, such as a person named in a power of attorney or committeeship order. After death, an estate can recover assets that are misappropriated from the deceased during their lifetime.

This was the case in the recent decision of the B.C. Supreme Court in Sarzynick v. Skwarchuk 2021 BCSC 443. In Sarzynick, the court considered a dispute between two siblings over the estate of their mother. In 2007, the mother and father made wills and also executed powers of attorney authorizing their son to act on their behalf. The father died first. When the mother died four years later, most of her assets had been depleted. The daughter argued that her brother had misappropriated large sums of money for his own use which belonged to his mother (and should form part of her estate).  The son denied this, but the court ultimately found that he was not a credible witness.

The court held that the son owed fiduciary duties as (1) executor of his father’s estate, and (2) his mother’s attorney. As attorney, he had an obligation to act in good faith in his mother’s best interests, to avoid personal gain from her property, and to account for all property.  The court held that he breached his fiduciary duties. He failed to keep (or disclose) financial records. This breach went to “the core” of the fiduciary relationship as attorney. He also breached his fiduciary duty of loyalty when he misappropriated funds for his own benefit.

The court went on to consider the appropriate remedies. This included a constructive trust over certain assets which properly belonged to the estate, and disgorgement of profits. Fortunately in this case many of the assets (monies) were held in trust, and so there was not the added complication of having to collect upon a judgment against an impecunious defendant who may have spent or hidden all of the assets that he took. The estate was entitled to recover over $440,000 from the son. The estate was also entitled to the appreciation in value of certain real property. Finally, the estate was entitled to special costs due to the son’s behavior during the litigation, which included a flagrant disregard for his disclosure obligations.

Unjust Enrichment: Plaintiff must Prove Efforts Actually Resulted in Benefit to Estate Property

In order to prove a claim in unjust enrichment against an estate, the onus is on the plaintiff to prove on a balance of probabilities a benefit to the estate, a corresponding deprivation to her, and the absence of a juristic reason for the benefit and deprivation. With respect to the first requirement, it cannot be assumed that just because a person incurred time and/or expense that related in some way to estate property, that this actually benefitted the property. It may be that despite the plaintiff’s efforts or expense, they did not actually enhance or maintain the value of the property. If that is the case, there is no claim in unjust enrichment.

This was the case in the recent B.C. Supreme Court decision of Benson v. Power 2021 BCSC 409. In Benson, a mother and father operated a cattle ranch over ten parcels of land near Golden, B.C. until their deaths in 2013 and 2016. The father held nine of the parcels, and the mother held one of the parcels. Both parents left their estate to their four children in equal shares. One of the children died in 2018, but left four children of his own (who as a result would each receive 1/16 of each estate).

One of the daughters, Penny Benson, obtained probate of both estates. Following her father’s death and then her mother’s death, she continued to operate the ranch has her parents had done. In doing so, the court observed that she (1) comingled her personal funds with estate funds, (2) did not act promptly to administer her parents’ estate, and (3) was in a conflict of interest as a result of her stated wish to acquire estate property. She was removed as sole executor by court order, and replaced with a person who was not a beneficiary under the wills.

Ms. Benson discussed with the new executor her desire to purchase certain estate properties. They were unable to reach an agreement, and so the new executor entered into agreements to sell the properties to his half-sister, who was also one of the grandchild beneficiaries who would receive 1/16 of the estate. This included the main ranch property with the family home where the deceased parents had lived. Ms. Benson had resided on this parcel since 1996, and moved from a manufactured home on the parcel to the family home after her parents’ deaths.

To prevent the sale of the property to the grandchild, Ms. Benson started an action alleging a 10% interest the parcel, and filed a certificate of pending litigation against title. She argued unjust enrichment: that her many hours of labour and the contribution of her personal funds have benefitted her father’s estate, particularly the parcel at issue, to her detriment. She argued that from the time her father’s health began to fail, she and her family performed all or almost all of the maintenance work on the estate properties (which she estimates amounted to hundreds of hours). She also claimed to have paid various expenses from her own funds.

As noted above, the onus is on the plaintiff to establish a benefit to the estate, a corresponding deprivation to her, and the absence of a juristic reason for the benefit and deprivation. Ms. Benson argued that her labour and money to continue operating her parents’ ranch benefited her father’s estate (including the parcel at issue), to her detriment. However, the evidence actually established that she operated the ranch at a loss. It was also impossible to say what time and money was necessary or related to the ranch operations, how much was related to Ms. Benson’s own family (including their own cattle), and how much this enhanced the value of the estate parcel (if at all). The court also alluded to (but ultimately did not have to specifically address) the fact that Ms. Benson and her family lived on the parcel rent-free.

As a result, Ms. Benson was unable to establish a benefit to the estate, and therefore was unable to prove a claim in unjust enrichment. Her claim was dismissed, and the certificate of pending litigation was cancelled.

This case is a reminder that just because you are spending time and money in relation to assets or property belonging to an estate, the court will not assume that this is actually a benefit to the estate which entitles you to claim in unjust enrichment. You must actually prove that your work or expense contributed value to the estate property.  This may also be further complicated if you are also receiving a personal benefit form your efforts or expense.