Boje Estate, Re, 2009 ABQB 749

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 31, 2009
• Citations: 2009 ABQB 749;(2009), 476 A.R. 1 (QB)

Boje Estate, Re (2009), 476 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JA.047

Kelly Boje and Corbin Boje (applicants/plaintiffs) v. Kelly Olson, Robert Strilchuk and Gordon Squire, Executors of the Estate of Jens William Boje, Deceased (respondents/defendants)

(ES03 111278; 2009 ABQB 749)

Indexed As: Boje Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

December 17, 2009.

Summary:

A deceased named the respondents as his executors and primary beneficiaries of the estate's residue. The deceased's daughter was not named as a beneficiary. Through intensive litigation, she was named a beneficiary. The litigation prevented the immediate distribution of the estate. As a result, the respondents had acted as executors since the date of probate in 1999. The applicants sought directions as to the priority of payments out of the Estate, the passing of accounts from January 1, 2005, to December 31, 2008, and an order setting the executors' fees from January 1, 2005, through December 31, 2008.

The Alberta Court of Queen's Bench determined the issues.

Editor's note: There are several cases dealing with this estate.

Executors and Administrators - Topic 2515

Duties and powers of executors and administrators - Payment of legacies - Priorities - General - [See Executors and Administrators - Topic 2816 ].

Executors and Administrators - Topic 2816

Duties and powers of executors and administrators - Payment of debts (incl. funeral expenses) - Priorities - A deceased named the respondents as his executors and primary beneficiaries of the estate's residue - He divided his personal assets between his sons, Corbin and Dallas, and left sections of his farmland and his farm equipment to Corbin - Kelly, the deceased's daughter was not named as a beneficiary - Through intensive litigation, she was named a beneficiary - The litigation prevented the immediate distribution of the estate - As a result, the respondents had acted as executors since the date of probate in 1999 - The applicants sought directions, inter alia, as to the priority of payments out of the Estate - The Alberta Court of Queen's Bench held that the executors' proper fees and disbursements were a charge against the entire estate - Even with an insolvent estate, funeral, testamentary and administration expenses were paid in priority to other claims and bequests - As a result, the executors were entitled to have paid themselves $157,130.64 out of the estate, as the compensation they were awarded by the court to the end of December 2004 - The executors were entitled to pay the estate solicitors out of the estate, for services provided before December 2004 - Thereafter, the executors' fees and other testamentary expenses were also to be paid out of the Estate, before any payments were made to Kelly - Any legal fees charged by the estate solicitors were subject to taxation by Kelly as they were essentially being paid out of funds that would otherwise be going to her - See paragraphs 44 to 102.

Executors and Administrators - Topic 7252

Compensation - Amount of compensation - Calculation - A deceased named the respondents as his executors and primary beneficiaries of the estate's residue - He divided his personal assets between his sons, Corbin and Dallas, and left sections of his farmland and his farm equipment to Corbin - Kelly, the deceased's daughter was not named as a beneficiary - Through intensive litigation, she was named a beneficiary - The litigation prevented the immediate distribution of the estate - As a result, the respondents had acted as executors since the date of probate in 1999 - The applicants sought, inter alia, an order setting the executors' fees from January 1, 2005, through December 31, 2008 - The executors sought basic (core) compensation of $96,664 and additional compensation of $120,750, for a total of $217,414 - The Alberta Court of Queen's Bench awarded core compensation of $44,327.88 (4% for revenues, 3/10 of 1% for the first $250,000 of the value of the Estate; 2/10 of 1% for the next $250,000 and 1/10 of 1% for the balance, for care and management) - The court allowed the following for additional compensation: accounting services ($18,500), cell and long distance charges (50% of that requested) ($2,100) and mileage (50%) ($475) for a total of $21,075 - Accordingly, total compensation from January 1, 2005, to December 31, 2008, was $65,402.88 - See paragraphs 111 to 145.

Cases Noticed:

Northern Crown Bank v. Woodcrafts Ltd., [1919] 2 W.W.R. 347 (Alta. C.A.), refd to. [para. 44].

Ladner Estate, Re, [2001] B.C.T.C. 943; 2001 BCSC 943, refd to. [para. 45].

Bogoch Estate, Re (2004), 181 Man.R.(2d) 35; 2004 MBQB 7, refd to. [para. 45].

Smith Estate, Re (2003), 240 Sask.R. 258 (Q.B.), refd to. [para. 46].

Thompson v. Thompson Estate et al., [2005] B.C.T.C. 1814 (S.C.), refd to. [para. 46].

Dierk Estate v. Smithgall et al., [2005] B.C.T.C. Uned. 613 (S.C.), refd to. [para. 46].

Lesse Estate, Re, [2001] N.S.J. No. 442 (Prov. Ct.), refd to. [para. 46].

Scott and Cresswell v. Cresswell et al., [1976] 3 W.W.R. 382 (Alta. C.A.), refd to. [para. 48].

Hall Estate, Re (1959), 59 S.R.(N.S.W.) 219, refd to. [para. 97].

Lanfear, Re (1940), 57 W.N.(N.S.W.) 181, refd to. [para. 97].

Newell, Re (1932), 49 W.N.(N.S.W.) 181, refd to. [para. 97].

Jensen Estate, Re (2001), 298 A.R. 31; 2001 ABQB 102, refd to. [para. 98].

Salmon Estate, Re (2005), 370 A.R. 327; 2005 ABQB 15, refd to. [para. 98].

B.R.A. et al. v. M.S. et al. (2005), 383 A.R. 271; 2005 ABQB 780, refd to. [para. 98].

Kush v. Devaleriola Estate (1997), 211 A.R. 188 (Q.B.), refd to. [para. 113].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vol. 16, p. 480 [para. 48].

Widdifield on Executors and Trustees (6th Ed. 2002) (Looseleaf), pp. 4.6.1 [para. 74]; 5.4.1 [para. 73].

Counsel:

Richard Bell (Blake, Cassels & Graydon LLP), for Kelly Boje;

Gary B. Romanchuk (Ogilvie LLP), for Corbin Boje;

Helen R. Ward (Duncan & Craig LLP), for the Estate and the Executors.

This application was heard on July 31, 2009, with written submissions to October 27, 2009, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on December 17, 2009.