2007 BCCA 532 Andersson v. Khan

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Andersson v. Khan,*
	2007 BCCA 532

Date: 20071029

Docket: CA034002

Between:

Sari Andersson

Appellant/Cross Respondent

(Plaintiff)

And

Sharaf Khan and Insha Ahmed Khan as Executors of the

Estate of Latif Ahmed Khan, Sharaf Khan, Insha Khan,

Matloob Ahmed Khan, and Saquib Khan and Ayeeda Khan

Respondents/Cross Appellants

(Defendants)

Before:	The Honourable Madam Justice Newbury
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Frankel

Oral Reasons for Judgment

A.J. Winstanley	Counsel for the Appellant
Ms. A. Khan Mr. I. A. Khan Mr. M.A. Khan Mr. S. Khan	Respondents appearing In Person
Place and Date:	Vancouver, British Columbia
29 October 2007

[1] Ms. Andersson was the plaintiff in two actions, referred to as the “New Westminster action” (Supreme Court File No. S024448) and the “Vancouver action” (Supreme Court File C996475). The more complex action, the New Westminster file, dealt with the validity of a will of the late Dr. Latif Ahmed Khan (the father of the appellant and the respondents, who died in 1994) dated June 22, 1982; the plaintiff’s claims for the value of various repairs, renovations or changes she made to a house owned by her father and her brother Sharaf in equal shares; and certain other expenses allegedly paid by the plaintiff relating to her father’s medical insurance, medications and funeral arrangements and insurance and property taxes relating to the house. These expenses were claimed from the father’s estate.

[2] In the Vancouver action, begun some time later, Ms. Andersson sought a declaration that a will allegedly executed by her father in Pakistan on October 14, 1993, and brought to the plaintiff’s attention after she advertised in Lahore, was valid and should be admitted to probate in place of the 1982 will propounded by the defendants. The two actions were consolidated by court order.

[3] Mr. Justice Williams handed down reasons for judgment on March 31, 2006, dealing with all Ms. Andersson’s claims, although for some reason, the Vancouver action number was not noted on the front page of his reasons (indexed as 2006 BCSC 521) or on the order.

[4] Since the facts he found are only of interest to the parties, I will not set them out here. I do note, however, that the trial judge reviewed the evidence carefully and made clear findings of fact. He concluded on applying the law that neither of the wills was valid; that accordingly Dr. Khan had died intestate; and that the plaintiff’s claims to recover the costs of “repairs and improvements” to the Burnaby house were not recoverable by her since they fell outside the ambit of the authority given by Dr. Khan and had not been reasonably undertaken, given that the other owner objected strenuously to the improvements. The trial judge did not deal with the so-called “personal expenses” of Dr. Khan because plaintiff’s counsel advised the Court at the end of the trial that Ms. Andersson was abandoning those claims. The trial judge awarded the estate its costs of the action against the plaintiff only, but made no award in respect of the costs of the other respondents, who had appeared in person.

[5] On appeal, the trial judge’s orders regarding the wills are not contested. However, counsel for Ms. Andersson has argued that the defendants were not “entitled” to mount a defence to her expense claim since, it is said, the defendants (in particular the executors of the estate) did not put those claims in issue in their pleadings. I cannot agree with this proposition in light of the fact that the statement of defence was filed by Ms. Ayeeda Khan on behalf of all the defendants, which included specifically the executors of the father’s estate. Counsel in this court objected that Ms. Khan was neither counsel nor the executor of the estate, but no objection was taken at trial, which proceeded on the basis that the expense claims were being resisted on behalf of the estate. It is too late to make this objection now and I see no error in how the trial judge proceeded in this regard. Further, the trial judge found that there was no valid will, and there are therefore no executors in any event.

[6] Ms. Andersson’s second ground of appeal is that the trial judge erred in law when he “ignored” the fact that the plaintiff had incurred actual expenses in making the changes and improvements to the house. I see no such error (which in any case would be one of fact). As the trial judge stated, at para. 85 of his Reasons, “Since the plaintiff did not have the receipts for work done, she elected not to recover her actual out of pocket expenses but framed her claim as one for the value of the improvements she had made to the property.” The latter claim failed, but that does not now entitle the plaintiff to mount a claim for out-of-pocket expenses, for which there was little or no evidence at trial.

[7] Nor am I persuaded that the trial judge mischaracterized the nature and purpose of the alleged improvements and repairs. He certainly has not been shown to be clearly wrong on the evidence, including the fresh evidence (which does not meet the criteria for admissibility in my respectful view).

[8] With respect to ground #4, I see no error in the trial judge’s treatment or interpretation of the authority which Dr. Khan gave the plaintiff in the documents dated May 1, 1991 and June 5, 1992. As for the “Renovation Agreement” of December 1, 1994, Mr. Winstanley provided no evidentiary basis for his contention that the trial judge had erred in concluding that the plaintiff was aware of the dispute between the co-owners and had been told in “no uncertain terms” that her authority to carry out renovations was denied by Sharaf Khan. This led the trial judge to conclude at para. 93 of his Reasons that in carrying out the improvements, Ms. Andersson “deliberately chose to ignore the true state of affairs”.

[9] When pressed, Mr. Winstanley submitted on appeal that the reasonableness of Ms. Andersson’s proceeding with the improvements in the face of her brother’s objection should not affect her right to be reimbursed by her father’s estate pursuant to the Renovation Agreement. Its terms were broader than those of the other two documents and may have been wide enough to cover the substantial additions and changes to the house and outbuildings carried out by the plaintiff. However, this question is academic in this case, given the trial judge’s finding that the changes and additions to the house had not in fact increased the value of the property and had in fact diminished that value: see para. 86 of the Reasons. Again, since this conclusion has not been shown to be wrong, this ground of appeal must fail.

[10] Issue #5 raised on appeal suggests that in the absence of a valid will, the Court is bound to follow a deceased’s wishes as expressed in correspondence, in this case correspondence between Mr. Khan and the plaintiff. This is simply not so: the Estate Administration Act mandates the disposition of the estate of an intestate.

[11] Finally, regarding costs, in my view, the trial judge was entitled to exercise his jurisdiction as he did in favour of the estate of the deceased.

[12] The other respondents on the appeal cross-appealed for costs of the trial and sought them on the appeal, as against Ms. Andersson. However, the matter of costs lay in the trial judge’s discretion, and since he saw the litigants at trial and was in the best position to assess their conduct of the case, I would defer to his judgement, in the absence of evidence that he exercised his discretion on a wrong principle. I would, however, grant all the respondents their costs of this appeal as against Ms. Andersson.

[13] Accordingly, I would order that the appeal be dismissed and the cross-appeal in respect of the respondents’ trial costs be dismissed, but that the respondents have their costs of the appeal.

[14] SAUNDERS, J.A.: I agree.

[15] FRANKEL, J.A.: I agree.

“The Honourable Madam Justice Newbury”