IN THE COURT OF PROBATE
ESTATE OF HILDA WINTER - #50348
Cite as: Winter Estate (Re), 2017 NSPB 1
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DECISION
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Date: September 11, 2017
Registrar Cora Jacquemin
Counsel: A. Lawrence Graham, Q.C. - Proctor for the Estate
Timothy C. Matthews, Q.C. – Counsel for Mr. Joachim Winter
Theresa Graham – Counsel for Mr. Igor Winter
Joachim Winter {“Joachim”} and Igor Winter {“Igor”} take the position that
the executor, Mr. Ivo Winter {“Ivo”} should not receive any commission from the
estate of their mother, Ms. Hilda Winter. There has been nothing put forward
from Itta Winter, the daughter of the deceased.
Joachim and Igor believe the evidence demonstrates the executor has wasted the
estate; that he has neglected to finalize the estate in a timely manner; has failed
to provide information when requested; has not disclosed information on the sale
of assets; has failed to appropriately deal with the assets of the estate, specifically
the Van Dyke painting. Additionally, Joachim claims he has failed to declare estate
assets properly, specifically the Austrian property; has delegated too many of his
responsibilities and has not taken advantage of services offered by family
members.
Counsel for the executor submits that he has conscientiously and pro-actively
moved these estates forward in order to obtain the best results possible. That the
delays were a result of litigation challenging his authority to administer the
estate which had to run its course. Ivo was also waiting for assets to be sold
and/or transferred. Mr. Graham states that Ivo hired professionals to assist him,
both here in Nova Scotia and abroad in an effort to liquidate the assets and move
the estate forward.
Letters Testamentary were granted to Ivo Winter on August 23, 1999. At that time
the value was indicated at $1,000,000: Personal property - $499,500.00 and Real
Property - $500,500.00.
The Warrant of Appraisement and Inventory was filed on April 17, 2001. It listed
the assets of the estate which included 5 parcels of land; bank accounts; a car; 4
pieces of ‘Major Art’; a detailed list of over 450 individual items of furniture and
appliances in the Halifax House and the Arichat House; securities and a safety
deposit box.
The total value of the estate was listed in the Warrant of Appraisement and
Inventory at $4,238,539.75: Personal Property - $2,816,839.75 and Real Property
$1,421,700.00.
When the final accounts were filed, they indicated a ‘total value administered’ by
the Executor as $6,051,757.60; a gain of more than 5 million dollars.
I reject the suggestion this was not a complicated estate and that it should have
been simple to administer. This was an extraordinarily complex estate, with
multiple properties and multiple assets located in multiple locations which
required complex negotiations and significant amounts of time to complete. Any
one of the issues faced during the administration of this estate would have
delayed the closing. Even so, the administration of Ms. Winter’s estate has been
sporadic at times.
While the amount of time it has taken to close the estate cannot be ignored when
commission is being determined, any delay in the administration of an estate
needs to be weighed against the results that have been achieved in the totality of
the administration.
Delays in closing an estate, in and of themselves, are not necessarily a basis to
completely deny commission to an executor. One of the guiding principles for
setting commission is: Results obtained and degree of success associated with the
efforts of the fiduciary. Simply put: The executor’s commission should bear some
relevance to the work he has performed. Ivo Winter’s work has resulted in a gain
of almost 5 million dollars for the estate.
In light of the complexity of the estate and the intricacies surrounding the
valuation and disposition of the estate assets, it was entirely reasonable to
employ the services of surveyors, overseas counsel, accountants and tax experts,
rather than rely on member of the family. The refusal of assistance from family
members should not be seen as an unwillingness to cooperate.
I do not know why Ivo stated under oath that he had not planned to ‘charge’
executor’s fees. Mr. Winter cannot charge executor’s fees: He can request a
commission based on the work performed as executor of the estate of his mother
and he has decided to do so.
I am awarding a commission of 2.25% to the executor of the estate. Based on the
value of the estate administered – minus the value of the real property - of
$4,630,057.60, this amount is $104,176.30.
Safety Deposit Box:
Igor Winter is seeking reimbursement of the costs associated with the safety
deposit box which he indicated he has been paying each year since the settlement
agreement was reached in 2004.
There is nothing before me to indicate Igor was under any obligation to keep
paying the fees for the safety deposit box. He could have advised Ivo Winter that
he was going to cease payments, but he chose not to do so. I fail to see how this
constitutes evidence of delay on the part of Ivo Winter. The Executor will return
the key to Igor and release any interest on the part of the estate.
Costs:
I refer to the article “Costs and Estate Litigation” 18 E.T.R. (2d) 218, Ian Hull sets
forth considerations favourable to an award of costs out of an estate:
- where the litigation arises out of the acts or fault of the deceased;
- where the order sought is for the protection of the trustee, such as an interpretation problem or where other directions or advice of the court are sought;
- where there are reasonable grounds for the litigation such as proof in solemn form;
- where suspicious circumstances are demonstrated;
- where the court’s scrutiny or supervision is warranted.
I do not believe that the passing of the final accounts meets the criteria of the
above noted categories. Therefore, I am not prepared to award costs to Joachim
Winter or Igor Winter.
CNMJ