IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Cook Estate (Re), |
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2019 BCSC 417 |
Date: 20190211
Docket: P27659
Registry: Cranbrook
In the Matter of the Estate of Eleanor Maureen Cook, Deceased
Before: The Honourable Mr. Justice Abrioux
Oral Reasons for Judgment
(In Chambers)
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Counsel for Applicant, Jennifer Ann Schmidt: |
M. Kerwin |
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Counsel for Respondents, Laurel Cook and Alec Cook: |
J. Lalonde |
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Place and Date of Hearing: |
Cranbrook, B.C. January 29, 2019 |
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Place and Date of Judgment: |
Vancouver, B.C. February 11, 2019 |
Table of Contents
D. Relevant Financial Information
3. Inter Vivos Transactions in 2016
2. Making of the February 13 Document
H. Administration of the Estate
[1] I intend to issue these reasons in writing in due course. When I do, they will be edited for publication, but the substance will not be affected.
[2] Since several of the persons involved bear the same surname, I will, meaning no disrespect, refer to them by their first names.
[3] The applicant, Jennifer, who is the named executrix of the Estate of Eleanor Maureen Cook, seeks:
1. an order pursuant to section 58(2) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] declaring that a handwritten document made on 13 February 2017 (the “February 13 Document”) by Eleanor Maureen Cook (the “Deceased”) represents the testamentary intentions of the Deceased;
2. an order pursuant to s. 58(3) of WESA declaring that the February 13 Document be fully effective as though it had been made as the will or part of the will of the Deceased;
3. an order confirming the appointment of Jennifer Ann Schmidt as the executor of the last will of the Deceased;
4. in the alternative, directions pursuant to Rule 25-14(8) of the Supreme Court Civil Rules [Rules] regarding the issues to be decided with respect to the Deceased’s estate; and
5. an order that she be entitled to payment of her reasonable costs and expenses of and incidental to this proceeding out of the Estate of the Deceased, payable as special costs on a full indemnity basis.
[4] The respondents, Eleanor’s husband and daughter Laurel, oppose the primary relief sought. Their position is that triable issues exist and the court should provide directions as to the manner in which this and two related actions should proceed.
[5] Fundamental to the issues to be considered on this application is a handwritten document composed by the Deceased several days before she became unresponsive and in which she purported to alter her will by excluding her respondent daughter as a beneficiary (the “February 13 Document").
[6] For the reasons that follow, the primary relief is, for the most part, dismissed with directions respecting the manner in which the issues arising in this and certain related actions should proceed.
[7] The background facts in this case are not significantly in dispute, but to the extent there is disagreement, what follows is largely extracted from the applicant’s written argument to which I have added certain facts relied on by the respondents.
[8] Eleanor was born on April 5, 1957, in Fernie, British Columbia. Her parents were Vince and Elizabeth “Bette” Nohels. Her father died in 2009, and her mother in 2011. Eleanor has two sisters, Barbara Nohels and Edith Ritchie, who also reside in the Fernie area.
[9] Eleanor died in Fernie on February 26, 2017, at the age of 59.
[10] Eleanor married Brian Schmidt when she was about 22 years old, and the couple had two children: Jennifer and Aaron. Eleanor and Brian separated shortly after Aaron’s birth in 1985, and divorced in 1990.
[11] Jennifer was born in 1980. She currently lives near Fernie, is married, and has two children. Aaron was born in 1985. He lives in Fernie with his spouse Keanna Weber. Keanna was present when Eleanor composed the February 13 Document, and she also witnessed and signed the document.
[12] Eleanor married Alec Cook in January 1992. Alec was born in 1944 and operated a business in Fernie. At the time of their marriage, he had an adult son from a prior marriage.
[13] On February 8, 1994, Eleanor and Alec had their first child, Laurel, who now resides in Calgary. She trained as a pilot in Kelowna for several years, where she resided in a condominium purchased in 2012 and registered in the names of Alec and Eleanor as joint tenants. She is now a first officer on WestJet Airlines.
[14] Jennifer’s position is that Eleanor and Alec separated in or about 2013, which was around the time Eleanor was diagnosed with cancer. No family law proceeding was commenced before Eleanor’s death.
[15] After the separation, Eleanor continued to reside in a house at 1311 Stewart Avenue in Fernie, where the family lived since the mid-1990s. Alec lived separately from the family. She purchased a new residence at 35 Skifty Morris Way at the Fernie Golf Club in 2014, but due to her health condition, was never able to fully move into this house. She ended up living partially in the new house and partially in the upstairs of the Stewart Avenue house.
[16] Eleanor later sold the Skifty Morris Way property and, in the spring of 2016, purchased a new residence at 4 Allan Graham Drive. She moved into this property in the fall of 2016.
[17] In September 2016, Eleanor consulted with Angela Etheridge, a lawyer in Fernie, about her intention to obtain a divorce. Ms. Etheridge’s notes from a meeting on September 20, 2016 state the information received from Eleanor was that “since about December 2013 [the couple had] been living separately”.
[18] Despite this, Ms. Etheridge’s file contains a questionnaire completed by Eleanor that day, which had the following question:
34. The date that you and your spouse separated
The date was left blank.
[19] There is affidavit evidence provided by friends and family, including Eleanor’s childhood friend, Sue Schmitz, to the effect that Eleanor and Alec had separated. However, Alec’s position is that he and Eleanor never separated and he remained her “spouse” in February 2017.
[20] Prior to her marriage to Alec in 1992, Eleanor worked as a skating coach, a flagger, and a secretary. After she married Alec, she worked in the office of his business, Cook’s Electrical. She later opened up the Cotton Tree Quilt Store in Fernie.
[21] Eleanor and Alec co-owned real property in Fernie and Kelowna, including the matrimonial home at 1311 Stewart Avenue in Fernie, and the Kelowna condominium where Laurel lived. In addition, Eleanor held a 50% interest in 657346 B.C. Ltd., incorporated in 2002, which owned two pieces of commercial property in Fernie. Alec owns the other 50% of this company.
[22] In 2011, Eleanor’s mother, Bette Nohels, died and Eleanor received an equal 1/3 share of the estate along with her two sisters. The Nohels’ estate is not completely administered. As part of an interim distribution, Eleanor received a commercial building at 581 2nd Avenue in Fernie where she operated the Cotton Tree Quilt Store, another property at 549 Burma Road in Fernie, and a parcel of land.
[23] Eleanor arranged for the assets that she received from her mother’s estate to be held by a company (0968694 BC Ltd.) that she incorporated in 2013.
[24] In April 2014, Eleanor purchased the Skifty Morris Way property for $1,030,000 and, in 2016, sold it for $1,000,000. She then purchased the Allan Graham Drive property for $849,000, and arranged for Jennifer and Aaron to be registered co-owners of this property.
[25] Eleanor held other assets, including investment accounts, jewellery, and a life insurance policy.
[26] In June 2013, Eleanor was diagnosed with colon cancer. She had surgery later that year, which decreased her mobility and increased her fatigue.
[27] When Eleanor moved to the Allan Graham Drive property in the fall of 2016, her son Aaron and his spouse Keanna also moved in, mainly to provide care for Eleanor. Jennifer also came to the house daily to assist her mother.
[28] On December 2, 2016, Eleanor was hospitalized in Cranbrook, but was otherwise able to remain at home until her death on February 26, 2017.
[29] According to Jennifer, Eleanor did not suffer from any cognitive problems. She provided Jennifer with a power of attorney to deal with financial matters due to her lack of mobility. On the other hand, the respondents have raised issues about Eleanor’s mental capacity and suggest that Eleanor was impaired by medication, such as morphine. According to Jennifer, Eleanor resisted the use of painkillers, and was only administered morphine beginning on February 24, 2017 when she became non-responsive. Prior to that time, she only took Gravol.
[30] Eleanor made a will on April 26, 2005, in which she appointed her daughter, Jennifer, and her sister, Edith Ritchie, as the executors. Her childhood friend Sue Schmitz was named as the alternate executor.
[31] Pursuant to the terms of the 2005 Will, Eleanor divided her estate equally between Jennifer, Aaron, and Laurel.
[32] On May 3, 2012, Eleanor made a codicil in which she appointed Jennifer as the sole executor. Sue Schmitz remained as the alternate executor. There were no changes as to how the estate would be distributed.
[33] According to Jennifer, by 2016 Eleanor expressed concern about treating her three children fairly. She believed that Alec would leave most of his estate to their daughter, Laurel, and leave nothing for Jennifer and Aaron. Eleanor repeatedly told her friends and family that she wanted to leave her assets to Jennifer and Aaron to be “fair”.
[34] At the hearing before me, Alec confirmed that his will provides solely for Laurel, and leaves nothing for Jennifer and Aaron. He also confirmed Eleanor was informed of this.
[35] When Eleanor sold the Skifty Morris Way property in the spring of 2016, she directed that a portion of the net sale proceeds be used to purchase the Allan Graham Drive property, and the remaining amount be given to Jennifer for the future education of Eleanor’s grandchildren. She also directed that title to the Allan Graham Drive property be in the names of herself, Jennifer, and Aaron, so that Jennifer and Aaron would become the owners of the property as joint tenants upon her death.
[36] Mr. Gord Leffler is a lawyer practicing in Fernie who had provided estate planning and corporate law advice to Eleanor. He prepared the 2005 Will and the 2012 Codicil, and also acted for Eleanor in regards to the conveyances in 2016. He confirmed that Eleanor wanted the Allan Graham Drive property to devolve to Jennifer and Aaron by right of survivorship.
[37] In December 2016, Eleanor transferred all of her interests in 0968694 BC Ltd. to Jennifer and Aaron on an equal basis. She informed Mr. Leffler that she took this step because she believed Alec would leave nothing for Jennifer and Aaron, but would “look after” Laurel, in his will. Eleanor executed the corporate documents on December 6, 2016, a few days after being hospitalized in Cranbrook. The value of 0968694 BC Ltd. at that time was approximately $2,100,000.
[38] According to Alec and Laurel, the value of the assets to which I have referred and which were transferred to Jennifer and Aaron in 2016 amounted to at least $3,000,000. Alec and Laurel also allege that in addition to the assets transferred in 2016, Jennifer was given a farm property, a $200,000 horse riding arena, and a 20-stall travel trailer park. Aaron was provided with $200,000 to purchase real property in Fernie.
[39] Based on what Jennifer has filed with the court in this action, the value of Eleanor’s estate is approximately $710,000.
[40] Again, according to Jennifer, Eleanor continued to consider her estate plan in the weeks before she died. She told friends and family that she wanted to leave her estate to Jennifer and Aaron, due to her belief that Alec would not leave anything for them. Eleanor also expressed some unhappiness with her relationship with Laurel.
[41] Some of the documents Jennifer located relate to Eleanor’s consideration of her estate plan during this time frame. After she was hospitalized on December 2, 2016, Jennifer wrote out a list of questions and issues about the estate. She wanted clarity about how the estate would be administered. A few days later, on December 7, 2016, Aaron sat down with Eleanor to review the issues. According to Jennifer and Aaron, Eleanor’s answers were consistent with an intention to leave most of her assets to them.
[42] Jennifer says that at some point after December 2, 2016, Eleanor reviewed a photocopy of the 2005 Will. She crossed out the bequest of a 1/3 residual share to Laurel and initialled the change. Alec and Laurel do not accept this assertion.
[43] On Monday, February 13, 2017, Eleanor was at her residence on Allan Graham Drive with Keanna, Aaron’s spouse. According to Keanna, Eleanor wanted to write down her intentions regarding her estate so that they would be known when she passed away. Eleanor then wrote the February 13 Document, which states:
I Eleanor Cook give Jen Schmidt and
Aaron Schmidt Equally My estate. An accounting must be done by an accountant. Laurel
will be taken care
by her father Alec Alfred Cook.
[44] According to Keanna, when writing the document, Eleanor made some handwriting mistakes, which she crossed out and initialled. Eleanor then inserted the date of “February 13, 2017” at the bottom of the document, and signed it. She asked Keanna to witness her signature, and to sign the document as well.
[45] After making the February 13 Document, Eleanor showed it to Ms. Schmitz to confirm that it represented her wishes. Ms. Schmitz, who had been friends with Eleanor since elementary school, questioned whether it was proper to remove Laurel from the distribution of the estate. She also queried whether the document would have any legal effect, since it was not notarized. Eleanor indicated to Ms. Schmitz that she would call Mr. Leffler.
[46] On Thursday, February 23, 2017, Mr. Leffler attended at Eleanor’s residence regarding land title documents for properties still owned by Eleanor’s mother’s estate. Eleanor’s elder sister, Barb Nohels, was at the residence at the time. Prior to Mr. Leffler’s arrival, Eleanor told Barb she needed to give Mr. Leffler something, and asked Barb to make sure that she did not forget.
[47] After signing the land title documents, Eleanor gave Mr. Leffler the February 13 Document and expressed a desire to add it to her will. Mr. Leffler took possession of the document, and brought it back to his office. He filed the February 13 Document along with the Nohels Estate conveyance documents.
[48] By the next morning, Friday, February 24, 2017, Eleanor’s health had deteriorated dramatically, and she was non-responsive. She died two days later.
[49] Following Eleanor’s death, as the executor named in the 2005 Will as modified by the 2012 Codicil, Jennifer took steps to administer Eleanor’s estate. She retained Mr. Leffler to assist with the probate application.
[50] Jennifer applied for a grant of probate in July 2017. At that time, she was unaware of the existence of the February 13 Document, or that other documents may have testamentary significance. In other words, Mr. Leffler had not drawn to her attention the February 13 Document. The issuance of a grant of probate was delayed due to a notice of dispute filed by Alec pursuant to R. 25-10 of the Rules. A grant of probate was ultimately issued to Jennifer on January 9, 2018.
[51] In the probate application, Jennifer estimated that the gross value of Eleanor’s estate was approximately $2,400,000. This includes an estimate of Eleanor’s interests in properties jointly held with Alec, and Eleanor’s 1/3 interest in the un-administered assets of her mother’s estate.
[52] In June 2017, in her capacity as personal representative of Eleanor’s estate, Jennifer commenced an action against Alec in the Supreme Court of British Columbia, Vancouver Registry No. S175543 (the “Property Action”), seeking to recover Eleanor’s share of properties that had been co-owned by Eleanor and Alec. Pursuant to s. 81 of the Family Law Act, R.S.B.C. 1996, c. 128, the joint tenancy would have been severed on the date of separation and converted into a tenancy in common.
[53] Alec filed a response to civil claim in the Property Action on September 29, 2017. In his response, he asserted that he remained Eleanor’s spouse at the time of her death and that the properties therefore devolve to him by the right of survivorship.
[54] After Alec withdrew the notice of dispute, he and Laurel filed a notice of civil claim against Eleanor’s estate in Cranbrook Registry, No. P27991 on November 29, 2017. An amended claim was filed on July 17, 2018. Alec and Laurel seek an order pursuant to Division 6 of Part 4 of the WESA varying the terms of the 2005 Will (as modified by the 2012 Codicil). They also seek a declaration that certain assets, such as 0968694 BC Ltd., belong to the estate.
[55] No examinations for discovery have taken place in this or the related litigation.
[56] In September 2018, Mr. Leffler came across the February 13 Document in his files. He notified Jennifer and provided her with the original.
[57] In the course of responding to the respondents’ affidavits in this application, Jennifer located further records in her mother’s papers that deal with the disposition of the estate. As noted above, these records include a copy of the 2005 Will in which Eleanor had, according to Jennifer, crossed out the bequest of 1/3 of the residue of the estate to Laurel, and marked her initials next to the change.
[58] One of the contested issues is whether Eleanor and Alec had separated and if so, when the separation occurred. It appears the two had some form of relationship at the time Eleanor died. In fact, they continued to live in the same residence until a few months before Eleanor’s death.
[59] The respondents were not made aware of the February 13 Document until late 2018, after the grant of probate had been issued.
[60] In fact, Keanna apparently did not advise either her husband, Aaron, or Jennifer about the existence of the February 13 Document and her involvement in its preparation until after the document was discovered by Mr. Leffler in September 2018.
[61] The parties essentially agree on the applicable framework, which I would summarize as follows.
[62] The WESA came into force on March 31, 2014, and therefore applies to Eleanor’s estate. In Hadley Estate (Re), 2017 BCCA 311, at para. 1, the Court of Appeal confirmed that the WESA represents a significant reform of British Columbia’s wills and estate administration law, and that section 58 is one of its “most-far reaching provisions”.
[63] Sections 58 (2)-(3) of the WESA provide:
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
[64] Section 58 of the WESA is a broad curative provision. It provides the court with the discretion to validate a document which has not been made in compliance with the formalities of will-making found in s. 37 of the WESA, and allow it to be admitted to probate, if satisfied that the document “represents the testamentary intentions of the will-maker”. The purpose of this remedial provision is to avoid the defeat of a will-maker’s genuine intentions due to some technical defect.
[65] The applicable test under s. 58 of the WESA has two main parts: (1) whether the record, document, or writing is “authentic” and (2) whether the record, document or writing represents the deliberate or fixed and final intention of the deceased person: Hadley Estate, at para. 36.
[66] This issue is decided upon the civil standard of the balance of probabilities, and is intensely fact-specific. The WESA does not require “substantial compliance” with the formalities of will-making before a document can be validated, but the further a document departs from the formal requirements, the harder it may be for the court to find it embodies the deceased’s testamentary intention: Estate of Young, 2015 BCSC 182 at paras. 34-37.
[67] The court may consider a wide array of extrinsic evidence to determine the testamentary intention: Hadley Estate, at para. 40; Estate of Young, at para. 36.
[68] In Hadley Estate at para. 36, the Court of Appeal approved the following passage from Estate of Young where Justice Dickson, as she then was, stated:
… testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[69] In Estate of Young at para. 36, the following list of relevant factors was provided:
… A wide range of factors may be relevant to establishing [the deceased’s testamentary intentions] in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document …
[70] Other factors identified in the authorities include: whether the language in the document connotes a sense of finality, or is precatory in nature. See also Lane Estate, 2015 BCSC 2162 at para. 44; Mace Estate (Re), 2018 BCSC 1284 at para. 47.
[71] I am also required to consider the following legal framework on this application.
[72] Proceedings relating to the validity of wills are no longer brought by way of action. Rule 25-14(4) of the Rules requires that such claims be brought by petition or by notice of application if a probate file already exists. The court may decide the issues on a summary basis if there is no credible challenge to the validity of the will or if there is no genuine issue for trial.
[73] If there is a triable issue about the validity of a will, R. 25-14(8) provides the court with broad powers to “tailor” the proceeding. It is not always necessary to convert a proceeding to an action: Lantzius Estate, 2015 BCSC 935 at paras. 58-60. The court can give directions about the issues in dispute, the scope of document discovery, and the mode of trial: Kerfoot v. Richter, 2018 BCCA 238 at para. 25. The goals of efficiency, affordability, and proportionality must animate the court’s analysis, and directions should be made “on a bespoke basis to fit the measurements of the case”: Seepa v. Seepa, 2017 ONSC 5368 at para. 49.
[74] The issues on this application are as follows:
(a) whether the February 13 Document represents Eleanor’s testamentary intentions;
(b) whether the February 13 Document should be declared to be fully effective as part of Eleanor’s will, effectively altering the will made by Eleanor on April 26, 2005 and constituting a second codicil to the 2005 Will; and
(c) whether there needs to be a trial of the issues to be decided with respect to Eleanor’s estate and, if so, what directions should be made to tailor the pre-trial process.
[75] While acknowledging that the February 13 Document does not comply with s. 37 of the WESA since there was only one witness, Jennifer’s position is that the document is clearly authentic and no triable issue arises in that regard. Relying on Bach Estate (Re), 2017 BCSC 548, she also says the court has discretion to declare the gift to Aaron valid even though he or Keanna was a witness.
[76] She argues that Eleanor’s “deliberate or fixed and final intention” can be determined summarily. In particular, she says there was a rational basis for Eleanor to write the document, that is, her belief Alec would not provide for Jennifer and Aaron in his will and that Laurel would benefit in that regard from her father.
[77] In the alternative, her position is that the court should give directions pursuant to R. 25-14(8) of the Rules in order to move this proceeding and the related litigation forward in an orderly way consistent with the principle of proportionality.
[78] Jennifer and Alec submit that many triable issues exist, including the authenticity of the February 13 Document. The basis for this latter assertion is Alec deposing that he did not “recognize” that the document was written in Eleanor’s handwriting.
[79] In so far as the former are concerned, they say that:
(a) Jennifer has placed herself in a conflict position with the estate in that she will personally gain if the orders sought by her are made;
(b) issues arise with respect to Eleanor’s capacity to make a will at the time that the February 13 Document was made;
(c) the February 13 Document was made during a time in which one of the beneficiaries of the estate, Aaron, along with his wife who witnessed the Document lived with Eleanor and assisted with caring for her.
(d) pursuant to the Will, Laurel Cook is an equal 1/3 beneficiary of Eleanor’s estate. The effect of the February 13 Document is that it fully excludes Laurel from her mother’s estate.
(e) there is overlap between this proceeding and the related litigation together with a need for document disclosure and examinations for discovery prior to the Court being in a position to determine if the core issues can be determined summarily;
[80] When I apply the legal framework to which I have referred to the evidentiary record on this application, I conclude that the only question which can be determined summarily is the authenticity of the February 13 Document.
[81] In that regard, there is overwhelming evidence that the February 13 Document was drafted and signed by Eleanor, as well as witnessed by Keanna. Alec does not say he disbelieves the handwriting to be Eleanor’s, but that he does not “recognize” it as such.
[82] When I consider Keanna’s evidence within the context of Eleanor’s conduct, particularly her statement to her friend Ms. Schmitz and the fact she gave the original to Mr. Leffler on February 23, 2017, I conclude the February 13 Document is authentic.
[83] However, I accept the respondents’ position that bona fide triable issues exist and it is premature to question whether the February 13 Document represented Eleanor’s deliberate or fixed and final intention.
[84] In my view, Mr. Leffler is a key witness who attended Eleanor’s residence to sign land transfer documents on the day she gave him the original February 13 Document. I find perplexing that:
(a) Mr. Leffler simply stored the February 13 Document in Eleanor’s file and did not become aware of its contents until September 2018; and
(b) Keanna did not mention the existence of the document to Aaron or Jennifer, both of who stood to gain significantly by its terms at the time it was made.
[85] There are also overlapping issues between the three actions, which include:
(a) were Alec and Eleanor separated as at the time of Eleanor’s death? This will impact the assets which form part of the estate;
(b) the relationship between Eleanor and Laurel within the context of the Wills Variation Act action and whether there was a rational reason for Eleanor to make the February 13 Document, a key issue in this proceeding;
(c) the effect if any of the significant gifts made by Eleanor to Jennifer and Aaron;
(d) the issue of whether undue influence existed in the time frame leading up to and when the February 13 Document was made. In that regard, Eleanor apparently needed a third party to write Laurel’s birthday card on February 4, 2017, and yet nine days later was able to write the February 13 Document.
[86] During submissions, I asked counsel to turn their minds to appropriate directions which could be given in the event I decided that this was the appropriate course of action to follow.
[87] Their responses included considering such matters as:
(a) the issues of testamentary capacity, undue influence, and whether Alec and Eleanor were separated should be decided prior to a trial in the Wills Variation Act action;
(b) directions could be given such that Alec and Laurel filed a notice of civil claim in this proceeding outlining the basis for their claims;
(c) Mr. Leffler being cross-examined on his affidavit or examined as a non-party witness;
(d) document disclosure and examinations for discovery of the parties in all three actions; and
(d) having the three actions set down for trial at the same time with evidence in one action constituting evidence in the others, but subject to orders delineating the sequencing of the hearing of the various issues.
[88] Counsel are in the best position to consider what should be contained in what is essentially a case plan order encompassing the three actions.
[89] Accordingly, pursuant to R. 25-14(8) of the Rules, I direct that by March 10, 2019, the parties in all three actions attempt to agree on a comprehensive case plan order which is to be submitted to me for my review. To the extent the parties are unable to agree on certain matters, then they are to set down the finalization of the case plan order before me at 9:00 a.m. for one hour, on a date to be scheduled through the Registry.
[90] The respondents took the position that Jennifer should not receive her costs of this application since it was, in part, her alleged conflict of interest which necessitated the application. They say they will be applying to have a neutral third party replace her as executrix.
[91] I disagree. Without determining the issue as to whether Jennifer has been in a position in where there is a conflict, there is no application before me to have Jennifer replaced. Under the circumstances, I find it was appropriate for Jennifer to bring this application.
[92] The parties shall all receive their costs of the application on an indemnity basis to be paid out of the estate.
“Abrioux J.”