PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. BEFORE: The Honourable Justice Kenneth R. MacDonald

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1 Citation: Stavert Estate Date: PESCTD 35 Docket: S1-ES-896 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION IN THE MATTER of the Estate of WALTER E. STAVERT, late of 7 Walker Drive, Kensington, Prince County, Prince Edward Island, Deceased, Testate. BEFORE: The Honourable Justice Kenneth R. MacDonald Appearances: Bernard McCabe, Q.C. - Solicitor for Brian Stavert Janet Clark - Solicitor for Gail Thompson and Marvin Stavert George A. Lyle - Solicitor for Stavert Estate Place and dates of hearing - Summerside, Prince Edward Island August 21, 2003 & September 23, 2003 Place and date of judgment - Charlottetown, Prince Edward Island May 4, 2004

2 Citation: Stavert Estate 2004 PESCTD 35 S1-ES-896 IN THE MATTER of the Estate of WALTER E. STAVERT, late of 7 Walker Drive, Kensington, Prince County, Prince Edward Island, Deceased, Testate Prince Edward Island Supreme Court - Trial Division Before: MacDonald J. Heard: August 21, 2003; September 23, 2003 Judgment: May 4, 2004 [13 pages] Estates - discretion of trustees - duties of trustees passing accounts - procedure on passing accounts - procedure - contents of a notice of motion. STATUTE CONSIDERED: Probate Act, R.S.P.E.I. 1988, Cap. P-21. CONSIDERED: Rules of Court, Province of Prince Edward Island, Rule 65; Cohen Melnitzer s Civil Procedure in Practice, Vol. 2, s. 9.1; Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 16 th ed. (Sweet & Maxwell); Widdifield on Executors Accounts, 5 th ed. (Carswell). CASES CONSIDERED: Learoyd v. Whiteley (1887), 12 App. Cas. 727 (H.L.); Josephs Estate (Re), [1993] 14 O.R. (3d) 628; Watterworth Estate (Re), [1996] O.J. No. 269; Ferguson Estate (Re) (2000), 16 Nfld. & P.E.I.R. 186 (P.E.I.S.C.); Cahill Estate (Re) (2002) 221 Nfld. & P.E.I. R. 235 (P.E.I.S.C.); Yetman Estate (Re) (1992), 96 Nfld. & P.E.I.R. 247; Kordyban v. Kordyban, [2003] B.C.J. No. 793; Turner v. Andrews (2001), 85 O.C.L.R. (3d) 53 at p. 5 (C.A.). Bernard McCabe, Q.C. - Solicitor for Brian Stavert Janet Clark - Solicitor for Gail Thompson and Marvin Stavert George A. Lyle - Solicitor for Stavert Estate

3 MacDonald J.: [1] This matter was set down to pass the accounts in the deceased s estate. The executors and trustees (the trustees ) of the estate are James Stavert and Kent Stavert, sons of the deceased. The family appears to be one with dissension between the various siblings dating prior to their father s death. There were no objections filed to the passing of accounts. However, Marvin Stavert, a son of the deceased, did submit an affidavit in which he stated at para. 17: 17. I make this affidavit for the purpose of requesting payment of the legal fees of both Andrew Campbell and Stewart McKelvey Stirling Scales out of the estate and for no other purpose. [2] Unfortunately, neither the Probate Act, R.S.P.E.I. 1988, Cap. P-21 or the Prince Edward Island Rules of Court provide for the practice to be followed when an objection is being made to the passing of accounts. Rule states that if the Probate Act or Rule 65 does not specifically provide a procedure, the general rules applying in the Supreme Court shall apply to proceedings in the Estates Division. Further, Rule provides: Notice of Motion Any application in any action or proceeding the procedure for which is not prescribed by the Act or these Rules and the practice whereon is not clearly defined may, unless otherwise directed by the judge, be made by motion, and notice of the motion shall be given to all parties to be affected by order sought. [3] In this instance, it would have been desirable for Marvin Stavert and his sister, Gail Thompson (the objectors ), who was supporting him, to have filed a notice of motion specifically setting forth the relief they sought. [4] In Cohen Melnitzer s Civil Procedure in Practice, Vol. 2, it is stated at s. 9.1: 9.1 NOTICE OF MOTION A motion is made by means of a notice of motion unless the nature of the motion or the circumstances make a notice of motion unnecessary. The notice of motion must state the precise relief sought, the grounds that are to be argued, including a reference to any statutory provision or rule to be relied on, and must list the documentary evidence to be used at the hearing of the motion. Upon a motion attacking a pleading for irregularity, the notice of motion must disclose the nature of the irregularity; the position of the party alleging irregularity should itself be free of procedural irregularity. A notice of motion that fails to cite the rule relied upon and the grounds to be argued is defective, and the motion may be adjourned or dismissed.

4 Page: 2 [5] The above accurately sets forth what is to be contained in a notice of motion. In setting forth the precise relief that is being sought, the applicant puts on notice to the respondent the case that is being alleged against him. In the present matter, Marvin Stavert and his sister have not filed a notice of motion setting forth the precise relief they are seeking. As a result, two conclusions can be reached as to what the objectors are really seeking. [6] While para. 17 of Marvin Stavert s affidavit would appear to clearly define the issue as being the question of the estate paying their legal fees of Andrew Campbell and Stewart McKelvey Stirling Scales, para. 15 of his affidavit appears to raise a second issue. Para. 15 reads: 15. After finally receiving all of the documents in connection with the application for the passing of accounts, the only issue my sister Gail and I have is with respect to the debt owed by our brother Brian Stavert. We do not feel that adequate information or documentation has been provided by the executors in relation to this debt as it appears from the documents that Brian only paid $10,000 after October, 2000 when the promissory note from October, 2000 says he owed our father $19,000. At our request, Ms. Clark has made additional inquiries about the information relied upon by the executors, but no additional explanation has been provided. [7] During the hearing which took place, Marvin Stavert briefly gave evidence, however, he did not state he was objecting to the executor s decision of accepting Brian Stavert s evidence that he had paid in full the debt he owed the deceased, his father. However, during the course of the hearing, counsel for Marvin Stavert stated their objection was with respect of the debt of Brian Stavert to the deceased. In summation, counsel for Marvin Stavert seemed to indicate that the question of Brian Stavert s debt was secondary to the question of costs. As I intend to assume Marvin Stavert is questioning Brian Stavert s allegation that he paid his father the full amount he owed, I will first deal with that issue. Brian Stavert s debt [8] On October 18, 2000, Brian Stavert signed the following handwritten document: I Brian Stavert owe Walter Stavert $19,000 Oct 18/00. I will paid Walter E. Stavert starting Jan. 1 of 2001, $ a month for 38 months or a sum of $3, every six month untill the balance is paid. [sgd] Brian N. Stavert [9] Subsequently, he made 12 payments of $500 each to his father, which were

5 Page: 3 recorded by his father in a day book. After the death of Walter E. Stavert, Brian Stavert made a further payment of $4,000 to the estate. [10] As to the balance owing by Brian Stavert, he states he paid $10,000 to his father on May 27, 2002, in cash. A document was produced with the name Walter Stavert written at the top and underneath the words paid Dad May 27/00 $10,000 cash. [11] An obvious problem with this document is that it is dated before the loan was made. Brian Stavert stated he had been saving money in 2002 to repay his father. He stated he recalled paying the amount on a Monday. May 27, 2002 fell on a Monday. In any event, there is no doubt that one can assume the document was not signed previous to the loan. Brian Stavert stated he wrote out the note on the engine bonnet of his truck and had his father sign his name to it. Marvin Stavert, in his evidence, did not present any evidence to show that Brian had not paid the debt. In fact, Marvin Stavert made no allegation that Brian s debt was unpaid, nor commented on the document Brian tendered. Gail Thompson, the other objector, gave no viva voce evidence, nor filed any affidavit. [12] The question is whether the executors have acted prudently in accepting the word of Brian Stavert that he paid $10,000 to his father as evidenced by the tendered document. It is stated in Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 16 th ed. (Sweet & Maxwell) at p. 717: If persons accept the office of executors they must perform it: they must use due diligence, and not suffer the estate to be injured by their neglect. They must, if unpaid, exercise the same care as an ordinary prudent businessman would apply to his own business affairs... [13] In Widdifield on Executors Accounts, 5 th ed. (Carswell), the following comment is made at p. 253: While it is an intangible thing to describe there is law relating to the mental processes of the trustee in coming to conclusions and decisions in his administration. The trustee cannot be criticised for lack of training or experience but the Court will try to enforce good faith, proper motives, and a minimum of good judgment. The test is whether a reasonable and honest man might have come to the same conclusion rather than whether the Judge would have handled the matter otherwise: Re Bell (1923), 23 O.W.N. 698; Tabor v. Brooks (1878), 10 Ch. D. 273; Watts v. Tovell (1930), 38 O.W.N. 53, affirmed at 265; and Re Gilroy Estate, [1938] 2 D.L.R Scott on Trusts, 2 nd ed., p says: In other words, although there is a field, often a wide field, within which the trustee may determine whether to act or not and when and how

6 Page: 4 to act, yet beyond that field the court will control him. How wide that field is depends upon the terms of the trust, the nature of the power, and all the circumstances. In determining whether the trustee is acting within the bounds of a reasonable judgment the following circumstances may be relevant: (1) the extent of discretion intended to be conferred upon the trustee by the terms of the trust; (2) the existence or non-existence, the definiteness or indefiniteness, of an external standard by which the reasonableness of the trustee s conduct can be judged; (3) the circumstances surrounding the exercise of the power; (4) the motives of the trustee in exercising or refraining from exercising the power; (5) the existence or nonexistence of an interest in the trustee conflicting with that of the beneficiaries. [14] The will of the late Walter E. Stavert appointed his sons James Stavert and Kent Stavert as executors and trustees of his will. Within the will, broad power was given to the executors and trustees as evidenced by the following clause: I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind and wheresoever situate, including any property over which I may have a general power of appointment, to my said Trustees to be held upon the following trusts, namely: (a) To use their discretion in the realization of my Estate, subject to the provisions hereinafter set forth, with power to my Trustees to sell, call in and convert into money any part of my Estate not consisting of money at such time or times, in such manner and upon such terms and either for cash or credit, or for part cash and part credit, as my said Trustees in their uncontrolled discretion may decide upon, or to postpone such conversion of my Estate or any part or parts thereof for such length of time as they may think best, and I hereby declare that my said Trustees may retain any portion of my Estate in the form in which it may be at my death (notwithstanding that it may not be in the form of an investment in which Trustees are authorized to invest trust funds and whether or not there is a liability attached to any such portion of my Estate) for such length of time as my Trustees may in their discretion deem advisable, and my Trustees shall not be held responsible for any loss that may happen to my Estate by reason of their so doing. [15] James Stavert stated he did not find any bank account of his father indicating a deposit of $10,000 had been made. Nor did he find any record made by his father showing the payment of $10,000. Brian Stavert had indicated that after he paid the $10,000 to his father, his father had written something in a book, however, this book was not found. Brian had also told James that he had paid the $10,000 in $100 bills, but only 26 $100 bills were found in Walter E. Stavert s safe.

7 Page: 5 [16] James Stavert stated that the document regarding the $10,000, produced by Brian, had what he believed was his father s signature on it, but he stated I don t know. [17] Kent Stavert did not give evidence and the only other witness besides James and Brian was Marvin Stavert, but he made no comment as to whether the signature on the document was his father s. The lack of evidence from persons who would appear to have been obvious witnesses on the question of Walter Stavert s signature creates a problem. [18] In exercising their discretion not to pursue a claim against Brian, one must look to any motive the trustees might have had. Were the executors on good terms with Brian? As to James, he stated he had not been to visit Brian for two and onehalf years previous to their father s death due to a difference of opinion that had occurred. There is no evidence that the trustees were favouring Brian over Marvin and Gail, the two objectors. [19] Further, by the terms of the will, Marvin and Brian were each to receive $2,500, while Gail and another sister, Susan MacWilliams, were to receive $5,000 each. The residue of the estate was to be divided equally between the children, James, Kent, Marvin, Brian, Gail and Susan. By accepting the evidence of Brian, the trustees were, in effect, reducing the amount of money that would fall into the residue and thereby reducing their shares of the estate. There is no evidence that the trustees had any motive to accept Brian s explanation and they were certainly not personally benefiting from their decision. The deceased gave his trustees uncontrolled discretion in dealing with his estate. There is no evidence to indicate the trustees abused that discretion. [20] The trustees have accepted the evidence that Brian has paid his debt to his father in full. In fact, he overpaid the sum of $1,000 when he gave the final payment of $4,000 to the trustees, which amount he stated was a little bit of interest. [21] I do not find that the trustee had any interest that was in conflict with any beneficiary. In exercising their discretion, the trustees actions cannot be said to lack prudence and the court should not interfere with their discretion. [22] Accepting the general rule to be that the law requires of a trustee no higher degree of diligence in the execution of his office than a man of ordinary prudence would exercise in the management of his own affairs, (Lord Wright in Learoyd v. Whiteley (1887), 12 App. Cas. 727 (H.L.) p. 733), I would conclude that the trustees have exercised their discretion in a proper manner.

8 Page: 6 [23] Walter E. Stavert authorized his trustees to use their uncontrolled discretion. While this does not mean that the trustees could do whatever they liked, the action of the trustees was in exercise of their best judgment. [24] The court has never lightly overturned the decision of a trustee. A lack of good faith would allow the court to intervene, but that has not been shown in the present case, nor has there been any wrongful or improper act by the trustees, or a wrongful or negligent exercise of discretion. The trustees acted reasonably within the bounds of their discretion. Costs [25] Turning to the matter of Marvin Stavert and Gail Thompson s costs, Marvin and Gail stated they needed legal counsel because they did not trust the trustees. They stated the first reason for lack of trust was caused by James and Kent s deciding they did not want to be trustees and then shortly thereafter deciding they would ask for probate of the will. I certainly do not see that as any reason to cause a lack of trust. [26] Secondly, Marvin and Gail state that their legal costs escalated because the trustees would not give them promptly, or at all, the information they were requesting. The objectors first retained Andrew Campbell to act for them, but Marvin indicated at para. 7 of his affidavit of August 20, 2003, that they had difficulty in getting information and decided to see a different lawyer, retaining the services of Stewart McKelvey Stirling Scales. The account of Mr. Campbell is only $178.16, while that of Stewart McKelvey Stirling Scales is $7, [27] Marvin Stavert, in his August 20, 2003 affidavit, stated he contacted his present counsel at the Stewart McKelvey firm to discuss: 1. whether the will should be challenged; 2. whether transactions of their father should be challenged; 3. whether the trustees should be removed; 4. whether a truck had been sold at an appropriate value; 5. whether an appropriate value on coins and paper money had been obtained; 6. whether all of the assets of their father had been accounted for; 7. whether the trustees could purchase estate assets; 8. whether the debt of Brian Stavert had been paid. [28] Who should pay costs on the closing of an estate is in the discretion of the judge. The case of Josephs Estate (Re), [1993] 14 O.R. (3d) 628 has been referred to,

9 Page: 7 in which Borins J. stated at p. 631: The passing, or audit by the court, of an executor's accounts is a significant part of the administration of an estate. Central to an audit is the determination by the court that the executor has properly performed its duties in regard to the trust fund created by the testator. Generally speaking, the executor and any beneficiary properly attending and represented by a lawyer on the passing of the accounts is awarded full compensation for his or her legal expenses from the trust fund, being the estate of the testator, administered by the executor. The audit of the executor's accounts is part of the administration of an estate and the legal expenses of the administrator, or executor, of an estate and of those beneficiaries properly attending on the audit are considered as expenses in administering the estate and are a first charge upon it:... This is to be contrasted with contentious, or adversarial, legal proceedings in which the general rule is that the successful party is awarded its costs, on the lower party-and-party scale, to be paid by the unsuccessful party. On an audit, because there is no losing party to pay the costs, each party is responsible to pay his or her own legal expenses which are ordered to be paid from the estate as the trust fund created by the testator represents the only source of money to pay the costs... [29] In the present instance, Marvin Stavert and Gail Thompson were represented by a lawyer, the trustees were represented by a lawyer, and Brian Stavert was represented by a lawyer. The comments of Borins J., insofar as they pertain to any beneficiary properly attending the passing of accounts being awarded costs must be limited in that if there were ten beneficiaries all with the same interest in an uncontested matter, costs for only one lawyer would likely be allowed. [30] The comments of Borins J. are also to be tempered by the law applicable to a contentious passing of accounts, which was the case here. In Watterworth Estate (Re), [1996] O.J. No. 269, (decision given on January 17, 1996), Ontario Court of Justice (General Division), Fleury J. dealt with a contentious passing of accounts and concluded that the action of the intervener was the cause of the proceeding becoming unnecessarily adversarial. No costs were allowed to the intervener, the reason for doing so being that it would encourage parties in estate matters to be as litigious as possible with impunity. [31] In Ferguson Estate (Re) (2000), 16 Nfld. & P.E.I.R. 186 (P.E.I.S.C.), Jenkins J. allowed reasonable legal costs to be paid out of the estate, finding there was a need for the beneficiaries to have legal counsel.

10 Page: 8 [32] In Cahill Estate (Re) (2002) 221 Nfld. & P.E.I. R. 235 (P.E.I.S.C.), Matheson J. refused to allow the legal costs of one of the beneficiaries of the estate to be paid from the estate after all of the beneficiaries objections to passing the accounts had been rejected. [33] In Yetman Estate (Re) (1992), 96 Nfld. & P.E.I.R. 247 (P.E.I.S.C.), Campbell J. refused legal costs to be paid from the estate to an intervener. [34] In the case of Kordyban v. Kordyban, [2003] B.C.J. No. 793, the British Columbia Court of Appeal summarized three principles set forth in Turner v. Andrews (2001), 85 O.C.L.R. (3d) 53 at p. 5 (C.A.) which would allow trustees or beneficiaries to be indemnified: (1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate. (2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate. (3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court's discretion, the unsuccessful party bears the costs of those whom he or she brings to Court. [35] It is not always clear when it is a beneficiary who is making the application as to whether it falls within the second or third principle. In the present case, I believe there are elements of both the second and third principles. In considering what items the objectors are asking to be paid for out of the estate, it is necessary to look at items on an individual basis. The items which Marvin Stavert and Gail Thompson sought advice from their counsel, and now seek to have the estate pay, would have to fall under the second principle if they are to be allowed. The question is whether the objectors were making justifiable objections to the administration of the estate. [36] In seeking to have the matter of Brian Stavert s alleged debt to the estate adjudicated upon, the question would fall within the second principle, as would the question of the appropriate value of the truck and coins, and the accounting of the

11 Page: 9 assets and determination of the question of the trustees right to purchase estate assets. The objectors were entitled to bring before the court all of these matters and would be entitled to their costs in doing so as set forth below. [37] Dealing with the other items set forth by Marvin and Gail as to why they consulted a lawyer, such matters were either personal to the objectors or were matters that would have been determined on the estate closing. They would not be entitled to be reimbursed by the estate for the legal costs in deciding whether or not they should challenge the will of the deceased, or the removal of the trustees, or the transactions made by their father at some time previous to his death. These were purely personal matters being pursued by the objectors. They were never pursued in court. To allow such a claim would sanction all sorts of consultations with lawyers by beneficiaries which would soon deplete the estate. [38] This was not a large estate, the gross assets as listed in the final accounts only being approximately $68,403. If an estate were large, with many types of assets and all the beneficiaries were looking for information concerning the assets, the amount of time and costs expended by the trustees to give such information would be extensive. [39] This brings into question how much information is required to be given to the beneficiaries by the trustees previous to passing the accounts. [40] The passing of accounts is the occasion for a trustee to render a true and just account of the estates of the deceased. At this time, the trustee must file a final inventory, having earlier filed an inventory when seeking probate. After filing the initial inventory, the trustees are required to serve on every person having an interest in the property of the deceased, a notice of granting probate. This gives notice to a beneficiary that he may inspect the inventory of the estate at the office of the Estates Division of the court. [41] The Probate Act further requires the trustee to file a supplementary inventory of assets after the initial inventory is filed, (s. 51), if new assets are located. The Probate Act further provides that if a trustee does not voluntarily render a final accounting in the estate, he may be cited to do so by any person financially interested in the estate, (s. 53.(1)). Section 54.(1) of the Probate Act also provides that when a trustee files his final accounts, he may have a citation issued on all interested persons advising them of the date of passing accounts, which shall not be less than 30 days from the service or publication of the notice. [42] Finally, s. 55(1) of the Probate Act provides that the trustee shall produce all vouchers for his expenditures and may be examined on dates touching the effects and

12 Page: 10 disposition of the estate. [43] There is no provision in the Probate Act or rules made thereunder that a beneficiary shall have the right to endlessly question the trustee concerning his administration of the estate prior to the passing of accounts. The Probate Act and rules adequately protect a person interest in an estate in obtaining information by providing for an estate to be passed by the trustee. [44] In Widdifield on Executors Accounts, (supra), the form and practice of filing accounts in Ontario is mentioned at p. 359:...The vouchers for disbursements should be numbered to correspond with the items of disbursements. In some counties the practice is to deposit the vouchers with the Registrar when filing the petition and accounts, to enable the parties interested in the estate to examine them. [45] Further on, it is stated: The account showing of what the estate consisted is not intended to be a mere copy or duplicate of the inventory filed on the application for probate or letters of administration. Such inventory is already available for every purpose. The evident intention of the rule is that the account shall contain a detailed inventory of the estate that came to the hands of the executor or administrator, or which for his default or neglect, should have come to his hands, as will enable the Judge, or the parties interested, to check and verify the account of the moneys received... [46] Section 54.(1) of the Probate Act allows persons interested in an estate, at least 30 days before the final accounts are passed, to inspect those accounts at the Estates Division. It might be said that by allowing a beneficiary to obtain whatever information he requires from the trustee prior to the hearing for passing accounts would save costs by not having to attend the passing of accounts. In certain cases this may be so, and, in fact, it is probably the practice followed where simple and nondetailed information is requested. This should not be discouraged. [47] However, where something other than a simple request for information is sought, the better practice is not to enter into protracted correspondence with the trustee. In such a case, it would be a better practice to wait until the hearing of passing the accounts is held, at which time the answers will be forthcoming. [48] If, at the hearing, further inquiry is required, then the matter may be adjourned. In Widdifield on Executors Accounts at p. 363, it is stated: Should any item occur which cannot, at the moment, be satisfactorily

13 Page: 11 explained, or the voucher for it produced, it is marked as a queried item for further inquiry; and if the accounting party does not afterwards attend and support the queried items, or obtain further time to do so, such items will be disallowed. [49] The practice on an estate passing was commented on in Widdifield on Executors Accounts at p. 362: Practice at the hearing varies considerably from Court to Court. All hearings are informal and often are perfunctory in cases where the parties have raised no objections. Vouchers to support the accounts should be organized and available at the hearing... [50] The practice in this jurisdiction is also informal and if no objection is filed and only the trustees attend the hearing, it is often heard in a Judge s chambers. [51] The objectors unnecessarily incurred expense not only to themselves, but also to the trustees. As an example, they requested of the trustees an appraisal on a truck which the trustee had valued at $4,475 in the inventory for probate. This was unnecessary. Trustees, in filing an inventory for probate, are only required by s. 42 of the Probate Act to give an estimate of real and personal estate of the deceased. Further, Supreme Court practice note 26(8) states: 8. In estimating the value of an asset that is not assessed for some tax purposes or, is not valued by some market valuations, i.e. stocks, bonds, etc., all the Court requires is an estimate that is reasonable. It is not, at the present time, necessary to have a valuation done by an appraiser. There are enough auction sales on Prince Edward Island to give an executor or administrator or a solicitor a rough idea of the valuation of personal assets. [52] There is no purpose in obtaining an appraisal of an item for the initial inventory if the item is to be later sold. It is up to the trustee on passing the accounts to justify the value of an item or the amount for which it was sold. [53] The objectors also had correspondence with the trustee concerning the coin collection and paper money, its appraised value, who might purchase it, that Marvin Stavert wished to purchase it, whether the appraiser wished to purchased it and whether the trustee could purchase it. Again, it was the duty of the trustees to show on the passing of the account that they met the standard of care required of them. If the trustees did not meet the required standard of care, then the court would remedy the situation on the passing of accounts. [54] Throughout the process, the trustees attempted to meet the various demands of

14 Page: 12 the objectors, although it may be said that by being so amendable probably spurned the objectors to continually make more requests. Had the trustees heeded their own advice, the objectors might not have gotten as involved as they did. The advice of which I speak was contained in a letter of February 19, 2003 from the attorney for the trustees, George A. Lyle, to the then attorney for the objectors, J. Andrew Campbell. It stated:...if they [objectors] have any complaints in the administration of this Estate, then they should bring those complaints not to the Executor or to me but to the Court. They can either do this at the time when the Estate Accounts are being passed or they can do it prior thereto by having the Executor cited in. [55] Additional requests from the objectors are illustrated by the letter of June 4, 2003 wherein the objectors requested the following: 1) I understand that James Stavert had an envelope to be opened only on Walter Stavert s death; I also understand that the envelope contained a handwritten note from Walter Stavert indicating the amount owing to Walter Stavert from Brian Stavert; we would like to have a copy of that handwritten letter/note; 2) Your previous correspondence indicates that the estate was able to determine the status of repayments from Brian Stavert to Walter Stavert based both on the records of Walter Stavert and records from Brian Stavert; please provide a copy of all of the records relating to that debt; 3) I understand there are bills/accounts which have been or will be paid by the estate since preparation of the most recent inventory of the estate. Please provide a complete list of all bills or accounts which will be paid from the estate; and 4) Please advise what has or will take place with Walter Stavert s gun. [56] As I have previously stated, a trustee in the interest of convenience may decide to accommodate a beneficiary by providing information previous to passing the accounts. It is on a case by case basis for the trustee to make his decision. Items 1, 2 and 4 above are relatively simple to answer and might be easily provided. However, item 3 involves the accounting in the estate which would, in a lot of cases, involve a major expense and would be information available on the passing of accounts. [57] A distinction should be drawn between an estate that is not anticipated will be formally closed by the court and one that will be closed. In the former, the trustee would be required to provide whatever information the beneficiaries require. However, where the estate is to be closed, the beneficiary can obtain the necessary

15 Page: 13 information at the passing of accounts. [58] As stated, the effect of s. 54(1) of the Probate Act is that the final accounts are to be filed with the court at least 30 days prior to the hearing. When the final accounts are filed, all vouchers, receipts and other documents to be used by the trustee on passing the accounts should be filed. This would allow sufficient time for any interested person to inspect the documents. [59] On August 14, 2003, the objectors caused their attorney to write a further three page letter to the attorney for the trustees. This letter requested information on some 15 to 20 items, the majority of which would be answered on the passing of accounts. [60] Overall, the objectors should not be allowed to have their costs out of the estate for personal advice they sought from their lawyer, such as whether they should challenge the will or transactions made by the deceased, or the removal of the executors. Neither should the objector be allowed costs of research, consultation and correspondence relating to matters that would be forthcoming on the passing of the accounts. Generally, they should be allowed their costs of attending the passing of accounts and those costs should be taxed. [61] The matter may be set down for the final accounting. May 4, 2004 J.