Saskatchewan Estate Litigation Update: Campbell v. Cooper, 2017 Carswell Sask 334, 2017 SKCA 55

This article offers a case comment on a 2017 Saskatchewan decision, Campbell v. Cooper.

The decision reminds us that beneficiaries who have been wronged by an executor should remember to begin an action within 2 years of when they discover said wrong.

Facts:

1. The plaintiffs in Campbell (the plaintiffs are hereafter “Campbell”) were beneficiaries of farmland. Their father had died on March 17, 1990;
2. Cooper, a Moose Jaw lawyer, was their father’s lawyer and also the executor of his will;
3. Letters were granted on July 11, 1990 appointing Mr. Cooper as executor;
4. The estate consisted in part of approximately nine quarters of farmland that were to be transferred to the plaintiffs;
5. Cooper eventually transferred the approximate nine quarters to Messrs. Campbell on December 30, 2009, 19 years after death. This was far too long, and it is not clear why it took so long, nor why the beneficiaries did not apply in court to remove the executor for such a delay;
6. On December 21, 2011, Messrs. Campbell issued a claim against Mr. Cooper in his personal capacity and in his capacity as executor;
7. They alleged that his delay in transferring the farmland had caused them loss, because it forced them to deal with the land as if they were leasing it. They claimed, as a result, they could not use any of the farmland as security to expand their farm base and farm operation.
8. Cooper died in September 2013 without ever accounting to Messrs. Campbell for his work as executor;
9. Cooper submitted the lawsuit was statute barred. Mr. Cooper said that the cause of action arose on January 11, 1991. This January 11, 1991 date was clear from the plaintiffs’ own claim:

11  The January 11, 1991 date arises from the plaintiffs’ claim as follows:

6. That our mother, Mary Catherine Campbell was named in the Will as Beneficiary and we understand that John Douglas Cooper as Executor, would have a responsibility under the Dependants Relief Act [sic] and/or under the Family Property Act [sic] to hold off and delay distribution of the Estate of our father, Russell James Campbell for at least six months after the issue of Letters Probate. He would be free to proceed with the distribution of the Estate after January 11, 1991.

10. The Court outlined that there were three potential dates on which limitation period began to run, in this situation. However under any of these dates, the limitation period had still long since expired.

1. From the testator’s date of death, being March 17, 1990 — six years later would have been March 17, 1996;
2. From the granting of Letters Probate issued July 11, 1990 — six years later would have been July 10, 1996;
3. From six months after Letters were granted (i.e. January 11, 1991) because of the necessity of the six month delay under the then s. 16(1) of The Dependants’ Relief Act, RSS 1978, c D-25 (since rep) and s. 30(2) of The Matrimonial Property Act, SS 1979, c M-6.1 (since rep) — six years thereafter would have been January 11, 1997. This appears to be the approach favoured by the plaintiffs.

17  In any event, the claim was issued on December 21, 2011, about 14 years after the last possible date of January 11, 1997. Nor have the plaintiffs advanced any pleading or argument that there was any recently discovered claim. They were clearly aware years before January 11, 1997 of their alleged cause of action.

11. The Court outlined that there were three potential dates on which limitation period began to run, in this situation. However under any of these dates, the limitation period had still long since expired.

Lesson:

The lesson from Campbell is that beneficiaries should be diligent in suing to redress any wrong they have suffered. Here, the brothers should have realized back in or around 1991, that the executor was taking too long to transfer the land to them. If they felt they had suffered damages, they could have begun a lawsuit against the executor.

In reality, what the beneficiaries could also have done in 1991 was actually bring an application to force the executor to transfer the land. If the executor had failed to then abide by such an order, the beneficiaries could have removed him by obtaining a second court order. That would have placed someone new in the role, who would have properly transferred the land. If the above had occurred, there actually would have been minimal damages, as the land would have been transferred much earlier.