Tag: right of retainer
Is an Estate Trustee allowed to withhold an inheritance? What if the inheritance is a specific bequest and the Estate has claims against the beneficiary? These questions were considered in June Brayford v Brayford.
I will do my best to simplify the facts. The testator named his two sons as Estate Trustees. His Last Will left a specific bequest, the proceeds of a CIBC account, to his wife (from a second marriage). The residue passed to the Estate Trustees. While the testator was still alive, a joint account was set up with his wife (an investment account with Desjardins Financial and Edward Jones).
After the testator‘s passing, the Estate Trustees took issue when the wife withdrew funds from the joint account, believing that the funds should have fallen into the residue. They alleged that the testator lacked the capacity to set up a joint account, and that the wife (who was also the testator’s guardian for property and personal care) breached her fiduciary duty by the setting up of the joint account. In response, the Estate Trustees refused to pay the specific bequest.
Two claims arose – the wife demanded payment of the specific bequest and the Estate Trustees claimed an equitable set off of the specific bequest pending the resolution of the joint account assets.
The Court first considered the right of retainer as set out in Cherry v. Boultbee (41 ER 171), which sets out the right that an estate trustee has of keeping out of the share of an inheritance, a debt owing to the estate by the beneficiary. The court noted an exception to this right though – when the inheritance is a specific bequest. It is this exception that the wife relied on to compel the payment of the specific bequest.
The Estate Trustees claimed an equitable set-off. They wanted to withhold the payment of the specific bequest until the claim against the wife regarding the joint account was heard.
The Court looked to Olympia for the procedure to be followed when considering a claim for both right of retainer and set-off. It was held that given that the two claims were so closely connected, that it would be unjust to allow the wife to enforce the payment of the specific bequest without taking into account the claim by the Estate Trustees regarding the joint account. So, the Estate Trustees were allowed to hold off on paying the specific bequest, pending the outcome of their claim regarding the joint account.
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