In an unusual and tragic case recently decided by the Alberta Court of Appeal, a father and grandmother went to court each seeking to be appointed as the personal representative of the estate of a woman who died in a plane crash along with her daughter.
Mother and Daughter Perish in Plane Crash
The mother and father had three daughters together. The parents were not legally married, although they had participated in a religious marriage ceremony and lived together for several years.
Sadly, the mother and one of the daughters died in an airplane crash in Ethiopia. At the time of the deaths, the mother and father no longer lived together.
The mother and daughter died without wills.
The father had been appointed the personal representative of the daughter’s estate. He had retained legal counsel in the United States, where the airplane’s manufacturer had its head office. He planned to pursue litigation on his daughter’s estate’s behalf.
He also wanted to retain the same counsel to act on behalf of the mother’s estate in the litigation.
However, the mother’s mother (the “grandmother”) and the father were embroiled in family law proceedings over the custody of the two remaining daughters, of which the father had sole interim custody. The grandmother had so far been denied interim contact with the children in the proceedings.
Father Applies to be Appointed Personal Representative of Mother’s Estate
The father had applied to be appointed as the personal representative of the mother’s estate for the limited purpose of representing her estate in the legal proceedings against the airplane manufacturer. In his application for the order, the father had stated:
“I am interested in the estate because I am the father of [the mother]’s two surviving minor daughters…”.
Even though the grandmother had priority in being appointed as administrator because the mother had died intestate and the father and mother were not married, he argued that there were unusual circumstances that would support the court using its discretion to deviate from the priority scheme under legislation. The court is granted discretion where it finds “special circumstances” that warrant deviation from legislation.
However, the grandmother had opposed the application, seeking to be appointed administrator herself. She argued that the court should not use its discretion and she should be appointed in accordance with the legislation.
The chambers judge granted the father’s application and issued an order appointing him as the personal representative of the mother’s estate for the limited purpose of representing the estate in legal proceedings arising from the airplane crash.
The chambers judge was satisfied that it was appropriate to make a limited grant to the father to deal with the upcoming airplane crash litigation. She found that his proposal was reasonable because he had already retained a law firm on behalf of his deceased child and there would be some efficiencies in having the same law firm deal with the claims of both estates. She noted it was in the father’s best interests to ensure that money from the litigation would flow to the surviving children and the father was not going to benefit from administering the estate. In the judge’s view, the person raising and caring for the children was in a better position to make decisions impacting the children’s entitlement. In the result, she therefore exercised her discretion to grant the application.
The grandmother appealed the order, arguing that the chambers judge erred by exceeding or wrongly exercising her discretion by disregarding the grandmother’s priority under legislation.
Court of Appeal Dismisses Grandmother’s Appeal
While the court recognized that the grandmother had priority over the father in being appointed the estate’s representative, it concluded:
“In this case, the [father] had a relationship with [the mother] and the beneficiaries of the estate are the children of that relationship. Therefore, the respondent has an interest in the estate, because of his relationship with [the mother], as the father and custodial parent of the beneficiaries of the estate. He has an interest in maximizing the value of the estate, for the benefit of his children, through the pursuit of litigation arising from the airplane crash…. It is true that the [grandmother] has a higher initial priority [under legislation]. However, the chambers judge was of the view that she should exercise her discretion in favour of the [father] as the more appropriate representative given the fact that he had custody of the children; he was already involved in the litigation as the personal representative of [the deceased daughter]’s estate; and there was ongoing conflict arising from the custody litigation. We discern no reviewable error in that exercise of discretion.”
The court also rejected the grandmother’s other grounds of appeal.
As a result, the court dismissed the grandmother’s appeal.
Get Advice
Baker & Company has adopted all of the COVID-19 safety precautions and vulnerable employees have been invited to work from home. We are fully operational and continuing to work on client assignments. Where possible, meetings are being held via video link or by telephone conference.
When a loved one dies, allow the experienced lawyers at Baker & Company to assist you with winding up and administering the Estate. We can offer practical advice and cost-effective services to ensure that the estate is wound up to the best advantage of the beneficiaries. Call us at 416-777-0100 or contact us online for a consultation.
