LeBouthillier Estate v. Selosse, 2014 NBCA 68

• Judge: Deschênes, Bell and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 30, 2014
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 68;(2014), 428 N.B.R.(2d) 177 (CA)

LeBouthillier Estate v. Selosse (2014), 428 N.B.R.(2d) 177 (CA);

    428 R.N.-B.(2e) 177; 1116 A.P.R. 177

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. NO.017

Renvoi temp.: [2014] N.B.R.(2d) TBEd. NO.017

The Estate of Samuel LeBouthillier (deceased), and Pamela LeBouthillier, Administratrix of the Estate of Samuel LeBouthillier (appellants) v. Philibert LeBouthillier, Euclide LeBouthillier, Réjean LeBouthillier, Denis LeBouthillier, and Lisette LeBouthillier (respondents)

(02-14-CA; 2014 NBCA 68)

Indexed As: LeBouthillier Estate v. Selosse

Répertorié: LeBouthillier Estate v. Selosse

New Brunswick Court of Appeal

Deschênes, Bell and Quigg, JJ.A.

November 20, 2014.

Summary:

Résumé:

In 1983, Samuel LeBouthillier opened a bank account with the Caisse populaire Acadie Ltée, naming his wife (Pamela) as the beneficiary of the account. They did not have a happy marriage. The account was never shared with her. In 2004, Samuel signed a power of attorney naming his son, Euclide, as his attorney. In March 2006, Samuel designated his son, Réjean, as the power of attorney without cancelling the first power of attorney. Subsequently, in 2006, Samuel was suffering from dementia and entered a nursing home. In February 2011, Euclide completed a beneficiary card to have the Caisse populaire designate Réjean as the beneficiary of the account in trust for Samuel's eight children. The Caisse populaire refused. Réjean withdrew $91,492.83 from the account, leaving a balance of $521.68, with the intention of distributing the money among his siblings. Shortly thereafter Samuel died intestate. Pamela learned that she was the designated beneficiary and obtained an order freezing the account. Pursuant to a court order, Réjean redeposited the withdrawn funds into the account. Pamela, in her own capacity and as testatrix of the estate, applied under the Marital Property Act for a declaration that she owned the monies in the account.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 416 N.B.R.(2d) 115; 1079 A.P.R. 115, dismissed the application. Pamela, on behalf of herself and the estate, appealed.

The New Brunswick Court of Appeal held that Réjean was entitled to withdraw the funds from Samuel's account and had been acting in Samuel best interest when he made the withdrawal. However, upon Samuel's death, the power of attorney terminated and Réjean no longer had the authority required to act on Samuel's behalf. A constructive trust had to be applied which inferred that the $91,492.83 reverted to Samuel's estate. Since Samuel died intestate, the $91,492.83 had to be distributed in accordance with the Devolutions of Estates Act. Pamela was therefore entitled to one third of that amount and Samuel's children were to share in the remaining two thirds. Pamela was also entitled to the $521.68 that was in the account at the time of Samuel's death. Additional funds that were deposited after Samuel's death were to be distributed one third to Pamela and two thirds to the children.

Agency - Topic 1065

Authority of agent - Express authority - Power of attorney - Scope of authority - In 1983, Samuel LeBouthillier opened a bank account with the Caisse populaire Acadie Ltée, naming his wife (Pamela) as the beneficiary of the account - They did not have a happy marriage - The account was never shared with her - Samuel designated his son, Réjean, as one of his powers of attorney - Samuel began suffering from dementia and entered a nursing home - Réjean withdrew $91,492.83 from the account with the intention of distributing the money among his siblings in accordance with Samuel's prior instructions - Shortly thereafter, Samuel died intestate - Pamela, on behalf of herself and the estate, applied under the Marital Property Act for a declaration that she owned the money in the account - The applications judge dismissed the application - Pamela appealed - The New Brunswick Court of Appeal held that Réjean's power of attorney gave him the authority to act on Samuel's behalf with respect to the account - When Réjean made the withdrawal, Samuel was mentally incompetent - The prerequisites for the power of attorney's survival of Samuel's incompetence were met (Property Act, s. 58.2(1)) - Réjean was acting in Samuel's best interests (i.e., no breach of fiduciary duty) when he made the withdrawal - Samuel's death terminated the power of attorney before the money was distributed - A constructive trust had to be applied to the money which implied that it reverted to Samuel's estate - Since Samuel died intestate, the $91,492.83 had to be distributed in accordance with the Devolution of Estates Act - Pamela was therefore entitled to one third of the money and Samuel's children were to share the remaining two thirds - See paragraphs 14 to 30.

Agency - Topic 1078

Authority of agent - Express authority - Power of attorney - Fiduciary duty - [See Agency - Topic 1065 ].

Agency - Topic 1080

Authority of agent - Express authority - Power of attorney - Enduring power of attorney - Termination - [See Agency - Topic 1065 ].

Company Law - Topic 7504

Credit unions - General - Passing of interest in credit union upon death - [See Agency - Topic 1065 ].

Company Law - Topic 7504

Credit unions - General - Passing of interest in credit union upon death - In 1983, Samuel LeBouthillier opened a bank account with the Caisse populaire Acadie Ltée, naming his wife (Pamela) as the beneficiary of the account - They did not have a happy marriage - The account was never shared with her - In 2004, Samuel signed a power of attorney naming his son, Euclide, as his attorney - In 2006, he entered a nursing home - In February 2011, Euclide completed a beneficiary card to have the Caisse designate his brother, Réjean, as the beneficiary of the account in trust for Samuel's eight children - The Caisse refused - Shortly thereafter, Samuel died intestate - Pamela, on behalf of herself and the estate, applied under the Marital Property Act for a declaration that she owned the monies in the account - The applications judge dismissed the application, holding that Euclide, as Samuel's attorney, became a "member" within the meaning of s. 47(2) of the Credit Unions Act and had the right to vary or revoke Samuel's beneficiary nomination under s. 47(4) - The New Brunswick Court of Appeal disagreed - Section 60 of the Act prescribed who could be members of a credit union, namely its incorporators and those persons whose applications for membership were accepted by the credit union - There was no evidence showing that Euclide's power of attorney gave him the status of a member in lieu of Samuel - In any event, under s. 47(4) only Samuel could vary or revoke the 1983 nomination - Euclide as Samuel's attorney did not have exactly the same rights as his father - The Act was a complete code with respect to the nomination of a beneficiary - Accordingly, Euclide, as Samuel's attorney, did not have the right to vary or revoke the 1983 nomination - See paragraphs 14 to 17.

Company Law - Topic 7504

Credit unions - General - Passing of interest in credit union upon death - In 1983, Samuel LeBouthillier opened a bank account with the Caisse populaire Acadie Ltée, naming his wife (Pamela) as the beneficiary of the account - They did not have a happy marriage - The account was never shared with her - Samuel designated his son, Réjean, as one of his powers of attorney - Samuel entered a nursing home - Réjean withdrew $91,492.83 from the account with the intention of distributing the money among his siblings in accordance with Samuel's prior instructions - Shortly thereafter, Samuel died intestate - Pamela, on behalf of herself and the estate, applied under the Marital Property Act for relief, asserting that the beneficiary card for the account entitled her to ask that the money be re-deposited to the account - The New Brunswick Court of Appeal stated that ss. 47(2) and 47(3) of the Credit Unions Act were clear - The money in a credit union account upon the member's death passed to the person nominated by the member of the credit union - The beneficiary card stipulated that his interest in the account was to be transferred upon his death - The card created no entitlement to the money in Samuel's account during his lifetime - Réjean was acting on Samuel's behalf and in his best interests when he withdrew the money - Since Réjean had full authority to manage the account and even to close it, Pamela could not demand that the money be put back, either before of after Samuel's death - See paragraph 31.

Company Law - Topic 7542

Credit unions - Membership - Defined - [See second Company Law - Topic 7504 ].

Trusts - Topic 2308

Constructive trusts - General principles - Circumstances when imposed - [See Agency - Topic 1065 ].

Droit des compagnies - Cote 7504

Caisse populaires - Généralités - Transfert d'un intérêt dans la caisse populaire au décés d'un membre - [Voir Company Law - Topic 7504 ].

Droit des compagnies - Cote 7542

Caisse populaires - Membres - Définition - [Voir Company Law - Topic 7542 ].

Fiducies - Cote 2308

Fiducies constructoires - Principes généraux - Circonstances y relatives - [Voir Trusts - Topic 2308 ].

Mandats - Cote 1065

Pouvoirs du mandataire - Pouvoirs explicites - Procuration - Étendue de l'autorisation - [Voir Agency - Topic 1065 ].

Mandats - Cote 1078

Pouvoirs du mandataire - Pouvoirs explicites - Procuration - Devoir fiduciaire - [Voir Agency - Topic 1078 ].

Mandats - Cote 1080

Pouvoir du mandataire - Autorisation expresse - Procuration - Mandat en cas d'inaptitude (y compris révocation) - [Voir Agency - Topic 1080 ].

Cases Noticed:

Desharnais v. Toronto-Dominion Bank et al., [2001] B.C.T.C. 1695; 42 E.T.R.(2d) 192; 2001 BCSC 1695, varied (2002), 175 B.C.A.C. 32; 289 W.A.C. 32; 2002 BCCA 640, refd to. [para. 16].

Houston Estate v. Houston et al. (2012), 325 B.C.A.C. 137; 553 W.A.C. 137; 2012 BCCA 300, refd to. [para. 16].

Chichester Diocesan Fund v. Simpson, [1944] A.C. 341, refd to. [para. 16].

Goguen Estate et al. v. Hachey (2012), 392 N.B.R.(2d) 114; 1016 A.P.R. 114; 2012 NBCA 56, refd to. [para. 17].

Tower Estate v. Grant et al. (2010), 366 N.B.R.(2d) 363; 942 A.P.R. 363; 2010 NBQB 418, affd. (2012), 384 N.B.R.(2d) 389; 995 A.P.R. 389; 2012 NBCA 27, refd to. [para. 17].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 20].

Egli v. Egli, [2004] B.C.T.C. 529; 2004 BCSC 529, affd. (2005), 220 B.C.A.C. 148; 362 W.A.C. 148; 2005 BCCA 627, refd to. [para. 24].

Houston Estate v. Houston et al. (2012), 325 B.C.A.C. 137; 553 W.A.C. 137; 2012 BCCA 300, refd to. [para. 25].

Mollot v. Mollot (2007), 409 A.R. 72; 402 W.A.C. 72; 2007 ABCA 183, refd to. [para. 25].

Ferguson Estate v. Mew et al. (2009), 250 O.A.C. 146; 2009 ONCA 403, refd to. [para. 26].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 28].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [para. 30].

Statutes Noticed:

Credit Unions Act, S.N.B. 1972, c. C-22, sect. 47(2), sect. 47(3), sect. 47(4) [para. 7].

Authors and Works Noticed:

Sweatman, Jasmine, Guide to Powers of Attorney (2002), pp. 6, 7 [para. 25].

Counsel:

Avocats:

Rita Godin, for the appellant, Pamela LeBouthillier;

Philibert LeBouthillier and Lisette LeBouthillier, no one appeared;

Euclide LeBouthillier, Réjean LeBouthillier and Denis LeBouthillier, appeared in person.

This appeal was heard on March 26 and June 30, 2014, by Deschênes, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. Bell, J.A., delivered the following judgment for the court on November 20, 2014, in both official languages.