Annie Doesn’t Get the Gun: Passing of Accounts Issues

November 27, 2020 Paul Emile Trudelle General Interest, Litigation Tags: , , , 0 Comments

The recent decision of Mervyn Estate, Re, 2020 ONSC 6989 (CanLII) illustrates the types of issues that can arise on a passing of accounts, and also the underlying factors that can lead to a contested hearing.

In Mervyn, Bud died leaving a will. In his will, he appointed his second wife Anne, a long-time employee and his daughter as estate trustees. He also had two sons, who were beneficiaries. The estate trustees prepared an accounting, and his two sons raised objections.

Before getting to the specific objections, the court noted that there were a number of factors that contributed to the distrust and animosity between the trustees and the sons. Some of these pre-existed the estate administration, and several arose in the course of the estate administration. For example, the sons had a strained relationship with the second wife and their sister for some time. (Alarm bell: testators should reconsider appointing estate trustees who already have a strained relationship with the beneficiaries.) In addition, the estate trustees failed to disclose a bank account in their initial accounting. (Alarm bell: even though the judge found that this was an oversight, and that the estate trustees did not know of the account, this served to heighten the distrust.) Another factor was a “different understanding” between the parties as to whether Bud wanted a one-day open-casket visitation. (Alarm bell: this trigger point could be avoided by a testator making his or her plans clear to all.)

With respect to the specific objections to the accounts, one was that two rifles listed as estate assets in fact belonged to one of the sons. This led to the son reporting the “theft” to the police. The estate trustees countered by alleging that the son’s position that he owned the guns “effectively amounts to theft” by him. (Alarm bell: accusations of theft and the involvement of police can only intensify the animosity and distrust.)

The court ultimately accepted that the son had purchased the guns. Spouse Anne didn’t get the guns.

Which brings me back to the title of this blog. What came to mind was Squeeze’s “Annie Get Your Gun” from 1982. A great song that I will now be humming all weekend. What I wasn’t thinking about and only learned of after further digging was the 1946 musical about sharpshooter Annie Oakley, “Annie Get Your Gun” by Irving Berlin. The musical features the song “There’s No Business Like Show Business”. Think Ethel Merman. Another song that I might be belting out this weekend. Sorry family.

Have a great weekend.

Paul Trudelle

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