The Executors Year

In the ordinary course, estate trustees are permitted a period of one year from the date of the death (sometimes described as the executors year) to gather in and realize estate assets, absent special circumstances that might indicate an abridgement of this one year period.

Re Engledow Estate 2001 CarswellOnt 2453

In Currie v Currie Estate 2005 PESCTD 64 the general rule was quoted from Feeney On Wills:

 

“In Baker v. Baker Estate, [1986] N.BJ. No. 185 at para 53, Godin, J. referred to Thomas G. Feeney, in The CanadianLaw of Wills, voL 1, Probate at p. 176:

(d)      Realization of Assets (The ‘Executors Year)

The executor must not unreasonably delay in getting in the assets and settling the affairs of the estate and he will be personally responsible for any loss occasioned by undue delay. There is no hard and fast rule as to what constitutes undue or unreasonable delay, but it is the practice to speak of the executor’s or administrator’s year and the courts attach importance to the question whether the alleged failure to convert or realize assets which resulted in the loss to the estate occurred within or beyond a year. Therefore, all investments which are not proper to retain should be realized within a year of the testator’s death or, in the case of an administration, within a year of the date of the grant.  It is the practice of the courts to consider that the estate ought to have been reduced to possession at the end of a year and to allow interest to then become payable on legacies, if there is any delay.”

 

The “executors year” developed as a rule of thumb  in the  common law, and provided that the executor of an estate has 12 months from the date of death to

call in the assets of the estate, pay the debts and liabilities, and to distribute the net assets to the beneficiaries in accordance with the provisions of the will.

The entire rationale for the rule is that executors must not unduly delay in the administration of the estate.

The Currie case  provides that if this is not accomplished within a year, the beneficiaries have the right to demand interest on their gifts and to call in the executors to explain why the administration of the estate has not been completed.

There are of course many complicated estates together with litigation and other such difficulties that can easily delay the administration of the estate well

longer than a year. Some clauses in wills also give executors wide latitude in determining how and when to realize the estate, and these clauses are often

relied upon by executors to explain why the administration of the estate is taking longer than one year.

In the experience of disinherited.com most of the complaints relating to the executors year is often related to an executor that either cannot or will not deal with the estate for various reasons, usually emotional, or they are simply power tripping over the other beneficiaries and literally keeping them in the dark.

If either of these are the case scenario than the executor is typically at fault and may be removed as executor for proper reasons.

Unsigned Draft Will Refused Probate

The only thing surprising about this decision from a British Columbia perspective is that it actually proceeded to court.

The solicitor prepared the draft will and advised the deceased in writing that she was to make an appointment to come in and sign it.

The deceased never did execute the draft will, and despite this, her relatives brought application for admission into probate of the unsigned document, purporting it to be her last will and testament.

The application for probate was dismissed.

The court ruled that a draft will could not be admitted to probate as it would fail the proper requirements of execution.

In Saskatchewan there needs to be at least some attempt at execution of a formal will.

It was not clear to the court that the document express the final wishes of the deceased, as the document was specifically noted as being draft subject to revisions.

There was no evidence that the deceased was confused as to the need to sign the will, as the solicitor’s letter was clear and unequivocal as to the requirement for further action on the part of the deceased.

Words “Born After” Interpreted

Born after“Born After” Interpreted in Two Express Trusts

Turk v Turk 2011 ONSC 6497 dealt with the various rules of construction and interpretation of the words“born after the date of the settlement” that were used in to family trust settled by a grandmother in 1992 and 1996, for the benefit of her two sons families.

One of the sons remarried after a divorce, and adopted two children who were 18 and 17 years of age at the time of their adoption.

Both were clearly born before, and not after,  the date that the trust was settled.

The two sons brought an application to have the terms of the trust interpreted, which resulted in the adopted children not being  beneficiaries of either trust.

After analyzing some of the general rules of interpretation, the court found that there was no ambiguity in the clause “born after the date of this settlement”, and that the words “born after” in particular,  meant exactly what they said, and had no other natural meaning.

Some of the principles used by the court are as follows:

 

  • All parties agree that there is no Canadian case law, which is on all fours with the issues in the interpretation of these Trusts. One firstly looks at the Settlor’s intention as ascertained from the four corners of the Trust Settlements themselves and from the Trusts as a whole and not solely from the words used. See: James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed. Looseleaf (Markham: LexisNexis Canada Inc., 2000) at para. 10.60.

 

  • Feeney’s, also says that if a Trust Deed describes a certain person with sufficient certainty to enable a Court to recognize the person intended by the settler, the Court will overlook the inaccuracy in the rest of the description. In my view, this principle cannot apply to the Trusts in question. Such descriptions relate to a beneficiary’ name, which is incorrectly spelled or misdescribed, such as a charity’s name. It can also apply when a testator or settlor describes someone as “my niece Ann Smith”, but that person is not blood-related to the testator or settler and whose name is actually “Anne Smith”, not the name shown in the document.

 

  • I have also reviewed the wording of Feeney’s in paragraphs 10.61,10.62,10.67,10.69, 10.71,10.80, 10.98,11.14,11.1,11.12,11.29 and 11.33.1 cannot see where any of these propositions apply to the wording of the Trusts. The clause in the Trusts is worded, “…and any other children of Jonah Turk born after the date of this Settlement, and the issue of such children”. There is nothing in this clause that is ambiguous or capable of two constructions. The words “born after” mean exactly what they say.

 

  • Nor can I find that the Settlor’s intention is not clearly expressed in the words used in the Trusts. The words “born after” cannot have any other meaning than their natural meaning.

There is no doubt as to the meaning of the words “born” and “after”. Any natural children Jonah may have in the future, and any infants or other children he may adopt who were born after the dates of the Settlements, would be included in the class described in the Trusts. Nor can I see where the Settlor had a general intent other than what the words themselves say in the Trusts.

There is no indication that she contemplated her son, Jonah, adopting adult persons or children who were almost adults and born “before” the dates of the Settlements, so that they would now be included in the classes of beneficiaries named in the Trusts.

  • The construction of the words of the Trusts is neither unjust nor absurd nor does the rule against disinheritance apply, as outlined in Feeney, in para. 10.80. The words “Jonah’s Family”, while now including his adopted children, is not a conflicting provision to “born after”. A conflicting provision must arise in the original wording of the Trust Deed, so that it is conflicting throughout the time from the Trust’s settlement date to the date of the interpretation. That is not the case here. The problem only arose when Jonah adopted persons born after the dates of the Trusts.

 

  • On the question of what is the Settlor’s intention, I adopt the traditional view on the interpretation of trusts as summarized in Lewin on Trusts 18th ed., John Mowbray et al., (Toronto: Thomson Sweet & Maxwell, 2008) at 200-201:

“Lifetime settlements are no different from other documents in that the subjective intentions of their authors are irrelevant. What counts is that the objective meaning that the words of the document convey to the court when considered as a whole in light of the surrounding circumstances.”

The intention that the court seeks is the intention as expressed; that is, the way in which the document is to be understood, not the purpose, motive, desire or other subjective state of mind of the settlor. The reason for the rule is that, otherwise, no lawyer would be safe advising on the construction of a written instrument, nor any party in taking under it.

 

Severance of Joint Tenancy By Power of Attorney Upheld

Severance of Joint Tenancy by aSeverance of Joint Tenancy Power of Attorney Upheld

 

Houston v Houston Estate 2012 BCCA 300 upheld the severance of the joint tenancy through the use of a power of attorney despite the fact that the attorney.

stood to gain financially in a subsequent wills variation action which he only had by reason of the severance of the joint tenancy, thus creating a tenancy in

common of half the house, which formed the only asset in the estate of the deceased.

disinherited.com finds the decision somewhat surprising and opines that this is because of two reasons:

A. The findings of fact by the trial judge which will be set out here after;

B. The fact that the principal of the power of attorney agency agreement was mentally competent and the court found that the attorney was carrying out his estate wishes.

disinherited.com further opines that had the deceased not been competent, that the court would have decided the decision differently and upheld the joint tenancy.

A Central Issue Was the Use of the Power of Attorney a Breach of Fiduciary Duty?

“The trial judge noted the following passage from Egli v. Egli 2004 BCSC 529, in which Madam Justice Garson (then of that court) had stated:

It is the attorney’s duty to use the power only for the benefit of the donor and not for the attorney’s own profit, benefit or advantage {Chapman). The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor (Robertson, Mental Disability and the Law in Canada at 183). I am not aware of any authority that detracts from this principle in circumstances where the benefit is conferred on family members.”

 

[54]  ”  There can be no doubt that a fiduciary who engages in ‘self-dealing’ or who receives a secret benefit or profit from a transaction carried out on the donor’s behalf, is accountable to the donor for such profit: see generally Fridman, supra, at 106-110. An obvious exception exists, however, where the donor consents to or authorizes the attorney’s acting as he or she has. This concept is encapsulated in s. 27 of the Property Law Act, which was quoted by the trial judge at para. 70 of her reasons:

Attorney cannot sell to himself or herself

27       A sale, transfer or charge to or in favour of himself or herself by an attorney

named in a power of attorney, of land owned by the principal and purporting to be made under the power of attorney, is not valid unless the power of attorney expressly authorizes it or the principal ratifies it.[Emphasis added.]

[55]    The trial judge found, correctly, that James Houston did not carry out a transfer “to or in favour of himself within the meaning of these provisions. The plaintiff argues, however, that by severing the tenancy, he “created an estate” for his father, since by the time he died, Dr. Houston Sr.’s only asset was the interest in the condominium. Title having been severed, that interest passed to his estate when he died. As the trial judge noted at para. 71 of her reasons, James Houston and his siblings have commenced an action under the Wills Variation Act- which they could not have done except for the severance. Obviously, they might benefit from James’ exercise of the authority granted to him.

[56]    The question of whether James Houston had his father’s authorization or consent to “create an estate” for him was again one of fact. In this case, the question was a delicate one that depended greatly on the credibility of James Houston and his sister, who also participated in the critical conversation with their father. The brother and sister were extensively examined and cross-examined about that conversation, and the trial judge realized its importance in the context of the law applicable to fiduciaries. She found that although the father had not specifically directed his son to use the power of attorney to sever the joint tenancy, he had “clearly instructed Dr. James Houston to use the power of attorney so that his estate would be preserved and his ultimate wishes fulfilled.” (Para. 89.) The trial judge has not been shown to have been wrong in reaching this conclusion or in finding that James acted so that his father’s wishes would be respected. The trial judge also accepted that before he made the appointment for his father to see Mr. Humphries in the fall of 2008, James had told Dr. Houston Sr. that if he, the father, was happy to “let things go the way they [were] going”, the Houston children were “happy with that. We were all well enough off.” But, he said, “Dad wasn’t. He said he [had] always been a man of fairness. He wanted things to go six ways to the family.” To be blunt, the fear of what Ms. Fowler and Mrs. Houston would do after Dr. Houston Sr.’s death put this plan into serious jeopardy.”

What Is a Power of Attorney and How Do They Work?

Power of Attorney (POA)

What Is a Power of Attorney?( POA)

The BC Court of Appeal decision in Houston Estate v Houston 2012 BCCA 300 raises a few very good legal issues relating to Powers of Attorneys.

disinherited.com will blog further about this appeal case, but for starters, the case has an excellent review on this particular type of ageny called an Attorney.

A power of attorney is a type of agency.

At common law, where an agency was granted by deed giving specified authority to the agent, it was called a “power of attorney”. In British Columbia, the Power of Attorney Act has modified the common law with respect to powers of attorney. (Like counsel before us, I refer to the Act as it stood in April 2009 when the power of attorney in this case was exercised. The Act has since been amended substantially.) The Act does not define what is a power of attorney but provided in s. 9 that a general power of attorney “may” be in Form 1 or Form 2 of the Schedule to the Act. Neither form required that the document be executed under seal (and neither instrument in this case was). The Land Title Act contains additional requirements that apply to any document tendered for registration that has been executed under a power of attorney, and requires the registrar to maintain an index of powers of attorney: see ss. 51-57.

Being a type of agency, the power of attorney is subject to various rules, some of which are codified in the Act, for the protection of the agent. As Professor G. Fridman notes in Canadian Agency Law (2009), although at common law a power of attorney was strictly construed, the ordinary rules of construction of documents are employed in determining the scope of the agent’s authority where the document is not under seal or where the authority is given orally. Thus Fridman writes:

If the document involved is not a deed, or the contract of agency is parol, the agent’s authority is to be construed having regard to the purposes of the agency, i.e., the surrounding circumstances and the usual course of the business in which the agent is concerned. In particular, where general words are used, they must be construed and understood in light of the usual course of the agent’s business.

Writing which contains the agent’s authority is of prime importance, but if there is any ambiguity about the wording of the agent’s authority then, as long as the agent acts in good faith and in accordance with a reasonable construction of his authority (if there is more than one possible), he will be considered to have acted within his authority, whether or not in fact what he did was what the principal intended he should do. [At 64.]

Sections 3 and 4(1) of the Power of Attorney Act reflect the common law’s concern for the agent whose authority has been terminated without his knowledge:

3           If an agent purports to act on behalf of a principal at a time when the agent’s

authority to do so has been terminated and

  1. the act is within the scope of the agent’s former authority, and
  2. the agent has no knowledge of the termination,

then, for the purpose of determining the liability of the agent for the act, the agent is deemed to have had the authority to so act.
4(1)      If

  1. the authority of an agent has been terminated, and
    1. a person who has no knowledge of the termination purports to deal with the principal through the agent,

then, for the purpose of determining the legal rights and obligations of the principal in relation to that person, the transaction is, in favour of that person, deemed to be as valid as if the authority had existed.

At common law, an agency normally terminates when the undertaking entrusted to the agent has been performed or where the agency was given for a stated period of time. An agency will also terminate if the subject matter of the agency is impossible of performance, or upon the death or insanity of either the principal or the agent while the agency is extant: Fridman, supra, at 123-28. In British Columbia, amendments to the Act in 1979 reversed the common law rule regarding the principal’s mental incompetence by providing the option of the “enduring” power of attorney: see s. 8(1), quoted above at para. 20.

Except where the agency is irrevocable (i.e., where the agent by deed or for valuable consideration has agreed to act on the principal’s behalf in order to protect an interest of the agent)the principal may unilaterally revoke or terminate the agency relationship, subject to its express terms. It seems clear that the agency is revoked by the giving of appropriate notice to the agent, and no prior warning is required at common law. ”

Who Gets What When There is No Will (Intestate)

What happens when there is no will?

My late mother used to tell me even when I was an established estate lawyer that when someone dies without a will, his or her assets go to the government.

No matter how hard I tried, I could never persuade her of the provisions of the Estate Administration Act RSBC that exists to prevent that very occurrence ,unless there is absolutely no next of kin anywhere in the world.

The provisions that are set out in this blog will be dramatically changing as of likely 2013 when revamped legislation is brought into effect.

In the interim, sections 83-91 inclusive of the Estate Administration Act set out a statutory formula as to who gets what when a person dies without a will(intestate):

 

Intestate leaving spouse but no issue ( issue are lineal descendants- children, grandchildren etc.)

83  If an intestate dies leaving a spouse but no issue, the person’s estate goes to the spouse.
Intestate leaving issue

84   If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person’s estate
must be distributed per stirpes among the issue.

Intestate leaving spouse and issue

85(1) In this section, “net value” means the value of an estate wherever located, both in and out of
British Columbia, after payment of the charges on it and the debts, funeral expenses, expenses of
administration and probate fees.

  1. This section applies if an intestate dies leaving a spouse and issue.
  2. If the net value of the person’s estate is not greater than $65 000, the estate goes to the spouse.
  3. If the net value of the person’s estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.
  4. After payment of the sum of $65 000, the residue of the estate goes as follows:

 

  1. if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;
  2. if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.

(6)If a child has died leaving issue and the issue is alive at the date of the intestate’s death, the
spouse takes the same share of the estate as if the child had been living at the date.

Spousal share if 2 or more persons are entitled as spouse

85.1 For the purposes of section 85, if 2 or more persons are entitled as a spouse they share the spousal share in the estate in the portions determined by the court as the court considers just.

Estate going to parents

86(1) If an intestate dies leaving no spouse or issue, the person’s estate goes to the person’s father
and mother in equal shares if both are living.
(2) If either of the person’s mother or father is dead, the estate goes to the survivor. Estate going to brothers and sisters

87(1) If an intestate dies leaving no spouse, issue, father or mother, the person’s estate goes to the
person’s brothers and sisters in equal shares.

(2) If a brother or sister is dead, the children of the deceased brother or sister take the share their parent would have taken if living, but further representation must not be admitted.

Estate going to nieces and nephews

88If an intestate dies leaving no spouse, issue, father, mother, brother or sister, the person’s estate
goes to the person’s nephews and nieces in equal shares, and representation must not be admitted in
any case.

Estate going to next of kin

89If an intestate dies leaving no spouse, issue, father, mother, brother, sister, nephew or niece, the
person’s estate must be distributed equally among the next of kin of equal degree of consanguinity
to the intestate, and representation must not be admitted in any case.

Kindred and half blood

90(1) For the purpose of this Part, degrees of kindred are to be computed by counting upward from
the intestate to the nearest common ancestor and then downward to the relative.

(2) The kindred of the half blood inherit equally with those of the whole blood in the same degree. Posthumous births

91         Descendants and relatives of the intestate, conceived before the person’s death but born
afterwards, inherit as if they had been born in the lifetime of the intestate and had survived the
intestate.

Ad Hoc “Casual” Fiduciary Relationships

Fiduciary- ad hoc

Sedin Estate v Rusin 2011 BCSC 1207 is an excellent example of financial abuse of an elderly person by a trusted financial advisor who was found to be in a casual and ” ad hoc “fiduciary relationships with the deceased.

The deceased and her husband became friends with the defendant financial advisor when the deceased was 69 years of age and the defendant was 32 years old. The deceased remained friends with the defendant after her husband’s death and in fact became dependent on the defendant for management of her finances as her health deteriorated.

The deceased was a modest woman and an unsophisticated investor who is the trial judge found, placed unwavering trust and reliance in the defendant and his abilities to manage her finances.

The deceased sold her house to the defendant’s company when she was 92 years old for $270,000.

The company issued a debenture as security but never made payments thus causing a significant loss to the deceased and her estate.

The executor brought action for damages arising from breach of fiduciary duty and the action was allowed.

The court found that an ad hoc fiduciary relationship existed between the testator and the defendant who had undertaken to look after the deceased financial well-being and to act in her best interests, and he accepted this role answer financial manager.

The defendant had power over the deceased finances, which he unilaterally exercised in a way that directly affected the deceased’s interests.

The deceased was exceptionally vulnerable to the defendant’s control, and the defendant was found to have breached his fiduciary obligation when he took advantage of the deceased by arranging for the sale of her house to his limited company.

In particular the defendant breached his fiduciary duty by providing worthless security for funds advanced by the deceased, and for failing to repay the principal amounts that the deceased invested with him.

The following exerpt of law is from the Sledin case:
Fiduciary Relationships

64    Certain relationships on account of their very nature result in fiduciary obligations for one of
the parties. For example, a lawyer has a fiduciary obligation to his or her client and a trustee has a
similar duty to his or her beneficiary. These types of relationships are generally referred to as per

se fiduciary relationships.

 

  • An ad hoc fiduciary relationship is one that does not fall within the traditional categories of fiduciary relationships. Instead, it is one that arises out of the specific circumstances and dynamics of the particular relationship.
  • In dissenting reasons in Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.) at para. 60, Wilson J. described what she considered to be the general characteristics of a fiduciary obligation as follows:

 

  1. The fiduciary has scope for the exercise of some discretion or power.
    1. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
    2. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

 

  • These observations of Madam Justice Wilson were later endorsed in International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574 (S.C.C).
  • The Supreme Court of Canada revisited the issue of fiduciary obligations and the constituent elements of such relationships in Hodgkinson v. Simms, [1994] 3 S.C.R. 377 (S.C.C), and Perez v. Galambos, 2009 SCC 48 (S.C.C).
  • While the characteristics of a fiduciary relationship articulated in Frame continue to be relevant in determining whether such a relationship exists, the more recent case authorities have recast those characteristics and added to them.
  • It is now clear that for an ad hoc fiduciary relationship to exist, the court must be satisfied that one party undertook, either expressly or by implication, to act for the benefit and best interest of another party: Galambos, at para. 66.
  • Moreover, a relationship whose distinguishing feature is only the vulnerability or power imbalance of one party vis a vis another will not, without any additional features, meet the threshold of a fiduciary relationship: Galambos, at paras. 67 and 74. 

The Presumption Against Intestacy

presumption against intestacyPresumption Against Intestacy In Wills Interpretation

Re Murray Estate 2007 BCSC 1035 has been previously blogged by disinherited.com and is a good case relating to the rules of construction in interpreting a will.

One of the golden rules of wills interpretation is that the court will not alter or add to the words of the will unless it is perfectly clear that the will does not express the intention of the testator.

That is particular so was drafted by the solicitor.

Another golden rule is the presumption against an intestacy– if the will is capable of two interpretations, the court will prefer the interpretation which disposes of the whole state in preference to that which results in an intestacy.

 

in Prouse v Scheuerman 2001 BCCA 100, restated a famous quote from Re Harrison (1885) 30 Ch.D. 390, :

” There is one rule of construction, which to my mind is a golden rule, that when a testator has executed a will in solemn form you must assume that he did not intend to make it solemn farce – that he did not intend to die intestate when he is gone through the form of making a will. You look, if possible, to read the wills was to lead to a testacy, not an intestacy. This is a golden rule.”

 

Similarly in re Craig (1976) 14 O.R.(2d) 589, affirmed on appeal stated the rule specifically at page 261:

” A court should only tamper with and add to the words of the will, particularly when drafted by a solicitor, where it is perfectly clear that the testator has not accurately, or completely expressed his intention. In other words, a case which is almost beyond argument.

In order to supply words not present in the will, a court must be certain:

a) that there has been an unintentional omission, and

b) as to the testator’s precise intention, but the testator meant to do.

Tracing and Accounting For Assets

TracingTracing & Accounting For Assets

It is very common in estate litigation that the form of an asset may change substantially over a period of time.

For example a bank account of cash can be converted into a stock portfolio, which in turn can be used to buy a house that is subsequently sold and put into long-term bonds.

As long as those funds can be identified, they can be traced and accounted for, and where appropriate and ordered by the court, transferred into the name of a rightful heir.

 The principals relating to orders for tracing and accounting were articulated by  Pitfield J. in  Ruwenzori Enterprises Ltd. v. Walji, 2004 BCSC 741 at paras. 240-242 and 245, aff’d 2006 BCCA 448:

1]    Neither tracing nor an accounting is a remedy.  Each is a process designed to assist in the perfection of a remedy…

2]    It follows that tracing is the process employed to identify and particularize the manner in which funds have been applied.  The results of the tracing permit a claimant to determine whether it will opt for a proprietary remedy in respect of funds derived from it, or a monetary judgment in respect thereof.

3]    An accounting is directed at the determination of profit, gain or loss derived from assets in respect of which tracing has identified a right to, and the claimant has opted to assert, a proprietary interest.

 

4]    Upon termination of any part of the tracing process at their option or otherwise, [the plaintiffs] will be entitled to elect to apply to confirm a proprietary interest in respect of assets other than those in respect of which the election to do so has already been made and by virtue of my reasons granted, or to enter judgment for the amounts I have enumerated and to apply for judgment in respect of any additional funds identified by the tracing process.

Administrator Removed For Misconduct With Special Costs

Administrator Removed For Misconduct With Special Costs

Sahota v Sandhu 2012 BCSC 552 is an example of a very straight forward court application to remove and replace a court appointed estate administrator who flagrantly acted in breach of his duties.

His actions were clearly so egregious that there was little surprise or discussion in  the courts removal of him as administrator.

The parties father died in 2008 intestate ( without a will).

The Court appointed the administrator who then breached his duties by transferring title to certain real properties initially to himself.

He then transferred title to his 6 siblings contrary to the terms of a court order.

The Court had little difficulty in ordering the removal of the son as administrator, transferring title to the properties into the petitioners’ names as administrator of the estate, requiring the removed son to pass his accounts , and ordering special costs against him.

Special costs typically means that the losing party must pay the winning side’s entire legal costs, and not just a portion of them, typically around 1/3 of the actual legal fees charged,  as most orders for “costs” provide.

Special costs are usually reserved for situations where one parties conduct is so reprehensible that the court’s need to sanction that form of egregious behavior.