Chernichan v. Chernichan Estate, (2001) 301 A.R. 212 (QB)

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 25, 2001
• Citations: (2001), 301 A.R. 212 (QB);2001 ABQB 913

Chernichan v. Chernichan Estate (2001), 301 A.R. 212 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. NO.078

In The Matter Of the Estate of Allan Chernichan

John Chernichan (applicant) v. Dreena Chernichan (Executrix of the Estate of Allan Chernichan) (respondent)

(Action No. 111553; 2001 ABQB 913)

Indexed As: Chernichan v. Chernichan Estate

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

November 8, 2001.

Summary:

The applicant sought a determination as to whether funeral expenses were to be paid in priority out of an insolvent estate, and whether a third party who paid those funeral expenses could claim them back from the estate.

The Alberta Court of Queen's Bench ordered a trial of issues respecting the reasonableness of the funeral service charges, the cost of the casket and the liner and the cost of the grave marker, and whether the applicant agreed to bear the expenses of the deceased's burial. The court held that reasonable funeral expenses had priority over the deceased's tax debts. The court held also that if it was determined that the applicant did not agree to bear the expenses of the deceased's burial, then the personal representative would be personally responsible for all reasonable funeral expenses and any "unreasonable" funeral expenses were to be borne by the persons who created them.

Executors and Administrators - Topic 2800

Duties and powers of executors and administrators - Payment of debts (incl. funeral expenses) - General principles - [See Restitution - Topic 5 ].

Executors and Administrators - Topic 2802

Duties and powers of executors and administrators - Payment of debts (incl. funeral expenses) - What constitute reasonable funeral expenses - The Alberta Court of Queen's Bench held, with respect to what constituted reasonable funeral expenses in an insolvent estate, that the charges for the clergyman, the burial plot (apart from the grave marker) were reasonable - The court doubted that an expensive luncheon was ever justified in an insolvent estate, and disallowed it - The persons who ordered the luncheon were held responsible for that expense - See paragraphs 22 to 26.

Executors and Administrators - Topic 2802

Duties and powers of executors and administrators - Payment of debts (incl. funeral expenses) - What constitute reasonable funeral expenses - Grave marker - The Alberta Court of Queen's Bench held: "I am unable to find any convincing authority that a tombstone is not a proper funeral expense. In the case of most solvent estates it will be. In many cultures a grave marker is a customary part of a burial. In insolvent estates only the simplest and most modest tombstones can be charged against the creditors. So long as the gravestone selected for the deceased was of a reasonable expense, having regard to all of the circumstances including the insolvency of the estate, there is no reason why it cannot be a proper funeral expense" - See paragraphs 27 to 31.

Executors and Administrators - Topic 2803

Duties and powers of executors and administrators - Payment of debts (incl. funeral expenses) - Personal liability of executor - [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 - The Alberta Court of Queen's Bench held: "... the law does provide for a priority for funeral expenses in an estate, to the extent that they are reasonable. Since [the personal representative] had sufficient funds in hand the reasonable funeral expenses of this estate should have been paid by the personal representative in priority to the tax debts of the deceased. The personal representative paid those tax debts at her own peril, notwithstanding that she did so on the advice of her advisers. I accordingly conclude that the personal representative is personally responsible for any unpaid reasonable funeral expenses of the deceased" - See paragraphs 16 to 21.

Restitution - Topic 5

General principles - Restitutionary claims - What constitute - The deceased made a will appointing his wife as personal representative and directing the personal representative to pay the deceased's just debts and funeral expenses - The estate was insolvent - The deceased's brother paid for the funeral expenses and sought a reimbursement - The Alberta Court of Queen's Bench stated that the brother was prima facie entitled to a reimbursement for reasonable funeral expenses incurred where the responsibility for funeral expenses lay first with the estate and then with the personal representative - The court stated that the obligation to reimburse arose in restitution, not in contract, and was founded on considerations of necessity, unjust enrichment and public health - The court ordered the trial of an issue as to whether the brother voluntarily agreed to give up his right to reimbursement - See paragraphs 11 to 15.

Cases Noticed:

Davey v. Cornwallis (Rural Municipality), [1931] 1 W.W.R. 1 (Man. C.A.), refd to. [para. 13].

Routtu v. Routtu, [1955] 1 D.L.R. 627 (N.B. Co. Ct.), refd to. [para. 13].

Pearce v. Diensthuber (1977), 17 O.R.(2d) 401; 81 D.L.R.(3d) 286 (C.A.), refd to. [para. 13].

Tzedeck v. Royal Trust Co. - see Tzedeck v. McIntyre Estate.

Tzedeck v. McIntyre Estate, [1953] 1 S.C.R. 31, refd to. [para. 14].

Tkachuk v. Uhryn (1952), 6 W.W.R.(N.S.) 515 (Sask. D.C.), refd to. [para. 14].

Sargent & Son Ltd. v. Buday, [2000] O.J. No. 5476, refd to. [para. 14].

Miller Estate, Re (1963), 43 W.W.R. 83 (B.C.S.C.), refd to. [para. 19].

R. v. Wade (1818), 5 Price 621; 146 E.R. 713, refd to. [para. 19].

Sharp v. Lush (1879), 10 Ch. D. 468, refd to. [para. 19].

Mount Pleasant Undertaking Co. v. McDuffee, [1923] 3 W.W.R. 957 (B.C.C.A.), refd to. [para. 19].

Stag v. Punter (1744), 3 Atk. 119; 26 E.R. 872, refd to. [para. 22].

Mullick v. Mullick (1829), 1 Knapp 245; 12 E.R. 312 (P.C. Calcutta), refd to. [para. 23].

Edwards v. Edwards (1834), 2 C & M 612; 149 E.R. 905, refd to. [para. 24].

Menzies v. Ridley (1851), 2 Gr. 544 (U.C. Ch.), consd. [para. 28].

Smith v. Rose (1876), 24 Gr. 438 (Ch.), refd to. [para. 28].

Starosielski v. Starosielski Estate, [2000] A.R. Uned. 226 (Q.B.), refd to. [para. 28].

Goldstein v. Salvation Army Assurance Society, [1917] 2 K.B. 291 (Eng.), consd. [para. 28].

Booth Estate v. Sault Ste. Marie (City), [1994] O.J. No. 3105, refd to. [para. 28].

Workmen's Compensation Board (N.B.) et al. v. Shirley Estate (1978), 30 N.S.R.(2d) 246; 49 A.P.R. 246 (T.D.), refd to. [para. 28].

Eisan v. Bonang (1958), 14 D.L.R.(3d) 750 (N.S.S.C.), refd to. [para. 29].

Hart v. Griffiths-Jones, [1948] 2 All E.R. 729, refd to. [para. 29].

Bridge v. Brown (1843), 2 Y. & C. Ch. Cas. 181; 63 E.R. 79, refd to. [para. 30].

Solski v. Solski Estate, [1981] O.J. No. 1176, refd to. [para. 30].

Hutzal v. Hutzal, [1942] 2 W.W.R. 492 (Sask. K.B.), refd to. [para. 30].

Statutes Noticed:

Administration of Estates Act, R.S.A. 1980, c. A-1, sect. 43(1) [para. 17].

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 136(1)(a) [para. 18].

Authors and Works Noticed:

Coke's Institutes of the Laws of England (1671), vol. 3, p. 302 [para. 19].

Fridman, Gerald Henry Louis, Restitution (2nd Ed. 1992), pp. 279 to 280 [para. 11].

Goff and Jones, The Law of Restitution (5th Ed. 1998), pp. 480, 481 [para. 14].

Widdefield on Executors' Accounts (5th Ed. 1967), pp. 1 to 2 [para. 25].

Counsel:

Justina Filice, for the applicant, John Chernichan;

Yolanda Van Wachem, for the personal representative, Dreena Lynn Chernichan.

Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this application on October 25, 2001 and delivered the following reasons for judgment on November 8, 2001.