LeBouthillier Estate v. Selosse et al., (2013) 416 N.B.R.(2d) 115 (TD)

• Judge: DeWare, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 06, 2013
• Jurisdiction: New Brunswick
• Citations: (2013), 416 N.B.R.(2d) 115 (TD);2013 NBQB 404

LeBouthillier Estate v. Selosse (2013), 416 N.B.R.(2d) 115 (TD);

    416 R.N.-B.(2e) 115; 1079 A.P.R. 115

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

.........................

Temp. Cite: [2014] N.B.R.(2d) TBEd. FE.027

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.027

The Estate of Samuel LeBouthillier (Deceased), and Pamela LeBouthillier, Administratrix of the Estate of Samuel LeBouthillier (applicant) v. Gemma Selosse, Philibert LeBouthillier, Euclide LeBouthillier, Réjean LeBouthillier, Denis LeBouthillier, Gaston LeBouthillier, Rufin LeBouthillier, Liette LeBouthillier (respondents)

(BM-36-2012; 2013 NBQB 404; 2013 NBBR 404)

Indexed As: LeBouthillier Estate v. Selosse et al.

Répertorié: LeBouthillier Estate v. Selosse et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

DeWare, J.

December 9, 2013.

Summary:

Résumé:

In 1983, 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, LeBouthillier signed a power of attorney naming his son, Euclide, as his attorney. In March 2006, LeBouthillier designated his son, Réjean, as the power of attorney for his Caisse populaire account. In 2006, he 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 LeBouthillier's eight children. The Caisse populaire refused. Réjean withdrew all but $521.68 from the account. Shortly thereafter, LeBouthillier died intestate. Pamela learned that she was the designated beneficiary and obtained an order freezing the account. Réjean redeposited the withdrawn funds into the account.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, dismissed the application.

Agency - Topic 1078

Authority of agent - Express authority - Power of attorney - Fiduciary duty - In 1983, 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, LeBouthillier signed a power of attorney naming his son, Euclide, as his attorney - In 2006, he was suffering from dementia and 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 LeBouthillier's eight children - The Caisse refused - Shortly thereafter, LeBouthillier died intestate - Pamela 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, dismissed the application - Euclide, as attorney for LeBouthillier, became a "member" within the meaning of s. 47(2) of the Credit Unions Act and had the right to vary or revoke LeBouthillier's beneficiary nomination under s. 47(4) - The Caisse did not have the authority to prevent him from doing so - The 2011 nomination revoked the 1983 nomination - Euclide's actions as attorney could only be reversed if he breached his fiduciary duty to LeBouthillier - When he changed the beneficiary card, he was respecting LeBouthillier's wishes - See paragraphs 18 to 35.

Company Law - Topic 7504

Credit unions - General - Passing of interest in credit union upon death - [See Agency - Topic 1078 ].

Company Law - Topic 7523

Credit unions - Powers - Scope of - [See Agency - Topic 1078 ].

Company Law - Topic 7542

Credit unions - Membership - Defined - [See Agency - Topic 1078 ].

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 7523

Caisse populaires - Pouvoirs - Portée - [Voir Company Law - Topic 7523 ].

Droit des compagnies - Cote 7542

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

Mandats - Cote 1078

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

Cases Noticed:

Goguen Estate et al. v. Hachey (2012), 392 N.B.R.(2d) 114; 1016 A.P.R. 114; 2012 NBCA 56, refd to. [para. 22].

Kask Estate v. Welsh et al., [2000] B.C.T.C. Uned. 276; 2000 BCSC 791, refd to. [para. 31].

Egli v. Egli, [2004] B.C.T.C. 529; 2004 BCSC 529 (S.C.), refd to. [para. 34].

Statutes Noticed:

Credit Unions Act, S.N.B. 1992, c. D-32.2, sect. 47 [para. 21].

Counsel:

Avocats:

Rita Godin, for the applicant;

Euclide LeBouthillier, on his behalf;

Gemma Selosse, on her behalf;

Philibert LeBouthillier, on his behalf;

Réjean LeBouthillier, on his behalf;

Denis LeBouthillier, on his behalf.

This application was heard on November 6, 2013, by DeWare, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst, who delivered the following judgment on December 9, 2013.