Executor’s Obligation to Disclose Documents In Estate Litigation

 Executor’s Obligation to Disclose Documents In Estate Litigation

 

Wang v Christie Estate 2014 BCSC 1574 confirms and discusses what I would have considered to be trite law in that once an executor named as a respondent in a civil wills variation claim is served with the claim, he or she becomes subject to disclose documents obligation imposed on all parties of record under rule 7-1

The  Plaintiff had brought an action alleging he was spouse of deceased and that deceased’s will did not make adequate provision for his maintenance and support .

The  Executor was named as defendant.

The  Master dismissed the plaintiff’s application for an order requiring executor to file and deliver list of documents and the  Plaintiff successfully appealed.

Master’s interpretation and application of Rules of Court was held to be  in error , as since the  Executor  delivered a Response to the  claim, he  became subject to document disclosure obligations imposed on parties of record.

 

The Law

20      But this court has held, in Callender v. Callender Estate (1999), 178 D.L.R. (4th) 269 (B.C. S.C.), that the Rules of Court have the force of statute and legislative effect. It has also held in Smith v. Knudsen (2002), 17 C.P.C. (5th) 169 (B.C. S.C.), that the Rules are subordinate legislation, and subject to other provincial statutes in the event of inconsistency.
21      I see no inconsistency between the Wills Variation Act requirement that an executor be served with notice of a claim and the Supreme Court Civil Rules requirement that an executor be made a party to an action under the Act.
22      The executor relies on Quirico v. Pepper Estate [1999 CarswellBC 2177 (B.C. S.C.)], where, in an action under the Wills Variation Act, Bouck J. said at paras. 15 and 16:
15. An executor should not pick sides between the beneficiaries and use estate funds to finance litigation on their behalf under the Wills Variation Act. It is a matter of indifference to the executor as to how the estate should be divided. He or she need only comply with the terms of the will or any variation of it made by a court.
16. For all these reasons, the law anticipates the executor will remain impartial between the opposing beneficiaries. Where proceedings are taken under the Act, all the executor need do is appear at the trial if required, and deliver to the court the Letters Probate and financial documents showing the value of the estate.
23      This statement of the law was adopted by Wong J. in Ketcham v. Walton, 2012 BCSC 175 (B.C. S.C.) at paras. 10 to 12.
24      The executor’s position is that a requirement to list documents is inconsistent with the impartiality and neutrality required of the position, and places him in the arena with the litigants.
25      Further, to impose an obligation to list documents in a variation proceeding will require an executor to inventory the documents of a deceased, an additional burden, or, if delegated to the estate solicitor, additional expense.
26      It seems to me that the executor is in a position to control that risk, or avoid the burden simply by not filing and delivering a Response to Civil Claim. That is the step, if taken, that triggers the obligation to list documents under Rule 7-1, because that is the step that converts the executor from being a named party as required by Rule 21-6(2) to a “party of record,” as defined in Rule 1-1, and it is as a “party of record,” rather than named defendant or mere party, that the obligation to list documents attaches.
27      The Master did not have the benefit of the fuller exploration of the Supreme Court Civil Rules, and their relationship with the Wills Variation Act, that was provided to me by counsel.
28      That fuller exploration of the rules may have led to the same result, however, as the Master’s reasons suggest that she may well have exercised the discretion conferred on her by Rule 7-1(14)(a) to excuse the executor from compliance with subrule (1).
29      The executor is willing to make the contents of the computer available to the parties: the parties are properly concerned to avoid infringing upon solicitor-client privilege. No one can know if there is anything in the computer to which the privilege might attach until someone examines its contents. I see no reason why counsel for the interested parties cannot examine the computer contents sufficiently to identify any documents that might contain privileged material and set those aside to be considered by counsel for the executor, who may or may not assert privilege.
30      The documents are not inaccessible to the interested parties; they simply have to devise a means of reviewing them with an eye to preservation of any privilege that may attach to an individual document or portion of document: see Bell v. Smith, [1968] S.C.R. 664, 68 D.L.R. (2d) 751 (S.C.C.), for the obligation to protect the privilege: see No. 151 Cathedral Ventures Ltd. v. Gartrell, 2002 BCSC 888 (B.C. Master), for an approach to partial redaction for privilege.
31      The Master’s interpretation and application of the Rules was in error: the executor having delivered a Response to Civil Claim became subject to the document disclosure obligations imposed on parties of record. The executor also became entitled to seek relief under Rule 7-1(14)(a), and because that was not argued before the Master, nor before me, the appropriate order is to remit the matter to the Master for argument on that point, if it is necessary, given my suggestions as to how to deal with the potential privilege issues that might arise if the interested beneficiaries take up the executor’s offer to examine the computer contents.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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