Choquette v. Viczko Estate et al., 2016 SKCA 52

• Judge: Ottenbreit, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 07, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 52;(2016), 476 Sask.R. 273 (CA)

Choquette v. Viczko Estate (2016), 476 Sask.R. 273 (CA);

    666 W.A.C. 273

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. AP.028

David Robert Allan Viczko and Jennifer Lenore Viczko (appellants/defendants) v. Yvonne Choquette (respondent/plaintiff) and Donna Boots, in her capacity as Executrix of the Estate of Joseph Frank Viczko, Farm Credit Canada (respondent/defendant)

(CACV2641; 2016 SKCA 52)

Indexed As: Choquette v. Viczko Estate et al.

Saskatchewan Court of Appeal

Ottenbreit, Herauf and Whitmore, JJ.A.

April 7, 2016.

Summary:

The testator had three children, Yvonne, Donna and David. David had farmed with the testator. The will directed that the testator's farm land was to be sold and the proceeds distributed equally between Donna and Yvonne. Donna was the executrix. Both David and Yvonne expressed interest in purchasing the farm land. Donna obtained an appraisal valuing the land at $94,000 and had the estate's lawyer prepare a bill of sale to David that was conditional on approval of the beneficiaries, including Yvonne. After David's wife Jennifer, a lawyer, advised Donna that Yvonne's consent was not required, a new agreement was signed with the beneficiary condition removed and David had the land transferred to himself and Jennifer as quickly as possible. Yvonne applied for relief, including a declaration that the transfer to David was invalid. She sought summary judgment.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 461 Sask.R. 159, allowed the application. The transfer was declared invalid and the title was to be returned to Donna as executrix. David and Jennifer appealed.

The Saskatchewan Court of Appeal allowed the appeal and remitted the matter to the Court of Queen's Bench for the hearing of oral evidence on a summary judgment application (under rule 7-5(3)), or at trial.

Executors and Administrators - Topic 2266

Duties and powers of executors and administrators - Power of sale of assets - Invalid agreements - The testator had three children, Yvonne, Donna and David - David had farmed with the testator - The will directed that the testator's farm land was to be sold and the proceeds distributed equally between Donna and Yvonne - Donna was the executrix - Both David and Yvonne expressed interest in purchasing the farm land - Donna obtained an appraisal valuing the land at $94,000 and had the estate's lawyer prepare a bill of sale to David that was conditional on the approval of the beneficiaries, including Yvonne - After David's wife Jennifer, a lawyer, advised Donna that Yvonne's consent was not required, a new agreement was signed with the beneficiary condition removed and David had the land transferred to himself and his wife as quickly as possible - Yvonne applied for relief, including a declaration that the transfer to David was invalid - A Chambers judge granted Yvonne summary judgment - Under s. 50.9 of the Administration of Estates Act, David and Jennifer, as purchasers in good faith and for value, could acquire valid title free of Yvonne's interest, notwithstanding her lack of consent to the sale - However, the Chambers judge held that the evidence as a whole established a lack of good faith by David and Jennifer - David and Jennifer appealed - The Saskatchewan Court of Appeal allowed the appeal and remitted the matter to the Court of Queen's Bench for the hearing of oral evidence on a summary judgment application (under rule 7-5(3)), or at trial - The Chambers judge could not have been truly confident in the result based only on the affidavit and documentary evidence - His finding of wilful blindness on the part of David and Jennifer was controversial and evidence to support that finding was inconclusive at best - This finding was pivotal to his conclusion.

Executors and Administrators - Topic 2270

Duties and powers of executors and administrators - Power of sale of assets - Whether beneficiaries must sign conveyance - [See Executors and Administrators - Topic 2266 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Executors and Administrators - Topic 2266 ].

Real Property - Topic 8008

Title - Registration of instruments, etc. - Land titles system - Bona fide purchaser - [See Executors and Administrators - Topic 2266 ].

Real Property - Topic 8008

Title - Registration of instruments, etc. - Land titles system - Bona fide purchaser - What constitutes - Section 50.9(1)(b) of the Administration of Estates Act provided that "A person purchasing real property in good faith and for value from the executor or administrator or a person beneficially entitled to the real property to whom that real property has been conveyed by the executor or administrator holds the property freed and discharged: ... (b) if the purchase is from the executor or administrator, from all claims of the persons beneficially interested." - The Saskatchewan Court of Appeal discussed the meaning of "good faith" as found in s. 50.9(1)(b) - The court stated that "One does not act in good faith when the court can 'infer from the surrounding circumstances that the buyer or mortgagee suspected something was wrong and refrained from asking questions' ... Good faith also denotes an absence of fraud and cannot be equated with negligence." - See paragraphs 44 to 49.

Words and Phrases

Good faith - The Saskatchewan Court of Appeal discussed the meaning of "good faith" as found in s. 50.9(1)(b) of the Administration of Estates Act, S.S. 1998, c A-4.1 - See paragraphs 44 to 49.

Counsel:

Ryan R. Lavoie, for the appellants;

Matthew R. Wawryk, for the respondent/plaintiff;

Davin R. Burlingham, for the respondent/defendant.

This appeal was heard by Ottenbreit, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Whitmore, J.A., delivered the following decision for the court on April 7, 2016.