Kushnier Estate, Re, (2014) 302 Man.R.(2d) 235 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 03, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 302 Man.R.(2d) 235 (QB);2014 MBQB 45

Kushnier Estate, Re (2014), 302 Man.R.(2d) 235 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MR.019

In The Matter Of: The Estate of Anne Kushnier, late of the City of Winnipeg, in Manitoba, Deceased

Application Under: The Trustee Act, C.C.S.M., c. T-160

Randie Nicholai Kushnier (applicant) v. Kevin Michael Lucas Kushnier (respondent)

Kevin Michael Lucas Kushnier (applicant) v. Randie Nicholai Kushnier (respondent)

(PR 13-01-94996; 2014 MBQB 45)

Indexed As: Kushnier Estate, Re

Manitoba Court of Queen's Bench

Winnipeg Centre

Martin, J.

March 3, 2014.

Summary:

Randie and Kevin Kushnier's mother named them co-executors of her estate, which was to be divided equally among her five children. The mother and Kevin were co-owners of a house that was not part of the estate. Before she died, the mother transferred her one-half interest in the house to her daughter. Kevin commenced an action regarding the house, naming his mother, father and siblings as defendants. After the mother died, Kevin applied to remove Randie as an executor, asserting that he would not act impartially due to disagreements with and animosity toward Kevin and that he was in a conflict of interest due to the house litigation. While Kevin agreed that the estate should be distributed, he sought an order requiring the estate to hold back $190,000 to cover Kevin's potential claim regarding the house. Before the application was heard, Kevin renounced his position as executor.

The Manitoba Court of Queen's Bench dismissed the application to remove Randie as executor. The court adjourned the matter of the holdback, directing Randie to determine what was in the estate's best interests and to seek the court's approval before acting.

Executors and Administrators - Topic 383

Appointment, qualification and tenure - Removal and suspension - Conflict between executors - Randie and Kevin Kushnier's mother named them co-executors of her estate, which was to be divided equally among her five children - The mother and Kevin were co-owners of a house that was not part of the estate - Before she died, the mother transferred her one-half interest in the house to her daughter - Kevin commenced an action regarding the house, naming his mother, father and siblings as defendants - After the mother died, Kevin applied to remove Randie as an executor, asserting that he would not act impartially due to disagreements with and animosity toward Kevin and that he was in a conflict of interest due to the house litigation - Before the application was heard, Kevin renounced his position as executor - The Manitoba Court of Queen's Bench dismissed the application - There was friction between the brothers - However, Randie had always been respectful - Nothing led the court to conclude that Randie was or would be impartial or would favour one beneficiary over another - The administration of the estate was relatively simple - The other beneficiaries wanted Randie to continue as executor - The legitimacy of Kevin's complaints was undermined by the "indifference to common sense and proportionality" that Kevin had shown in the house litigation - Kevin's understandable discomfort was not grounds to remove Randie - See paragraphs 23 to 36.

Executors and Administrators - Topic 384

Appointment, qualification and tenure - Removal and suspension - Conflict of interest - [See Executors and Administrators - Topic 383 ].

Cases Noticed:

Tapper v. Sair-Segev (2003), 178 Man.R.(2d) 271; 2003 MBQB 243, refd to. [para. 14].

Letterstedt v. Broers (1884), 9 App. Cas. 371, refd to. [para. 14].

Bereskin Estate, Re (2014), 303 Man.R.(2d) 8; 600 W.A.C. 8; 2014 MBCA 15, refd to. [para. 15].

Bartel Estate, Re (2006), 208 Man.R.(2d) 286; 383 W.A.C. 286; 2006 MBCA 139, dist. [para. 30].

Counsel:

Murray Trachtenberg, for R.N. Kushnier;

Darryl Kreel, for K.M.L. Kushnier.

The application was heard by Martin, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 3, 2014.