Atkins Estate | Jun 22, 2022

Court of Queen’s Bench of Alberta

Citation: Re Atkins (Estate), 2022 ABQB 428

Date: 20220622

Docket: ES01 131187

Registry: Calgary

ES01 131187

Court File Number

Court

Court of Queen’s Bench of Alberta

(Surrogate Matter)

Calgary

Judicial Centre

Estate Name

Murray Kyle Atkins (aka Murray Atkins)

Shawn Joseph MacDonald

Applicant (Plaintiff)

L & K Tire Inc.

Respondent

_______________________________________________________

Reasons for Decision

of the

Honourable Mr. Justice Robert A. Graesser

_______________________________________________________

Introduction

[1] This decision relates to two applications. The first, brought in September 2020, is an

application by the Personal Representative Shawn J. MacDonald for advice and directions under

Surrogate Rule 4(1), AR 130/1995:

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4(1) A personal representative or a person interested in an estate may apply in Form

C 1 to the court for directions at any time.

(2) On an application for directions, the court may consider

(a) practice, procedural or other issues or questions and ways to resolve them, and

(b) any other matter that may aid in the resolution or facilitate the resolution of a

claim, application or proceeding or otherwise fairly or justly resolve the

matter for which direction is sought.

[2]

Mr. MacDonald seeks directions as to his ability to make certain payments to the

personal representative named in the will, Kristina Kay Atkins for expenses incurred by her from

the time of Mr. Atkins’ death in November 2019 until she renounced her right to probate in

August 2020.

[3]

Mr. MacDonald also seeks directions as to the fees to which he is entitled. He is looking

for a pre-determined fee of $12,000 per month retroactive to the time of his appointment. Pre-

taking of fees for personal representatives is contemplated in Section 6 of Schedule 1 to the

Surrogate Rules:

Pre-taking Compensation

6(1) Personal representatives may be paid compensation before completing the

administration of the estate if

(a) the will provides for it,

(b) all the affected beneficiaries agree to it, or

(c) the court orders it.

(2) If all or any part of the amount of compensation paid to a personal representative

under subrule (1) is later reduced by the court, the personal representative must repay

the disallowed amount immediately to the estate with interest at a rate and for a

period set by the court.

[4]

[5]

Both applications by the Personal Representative are supported by Ms. Atkins.

The Estate’s major creditor, L & K Investments Inc., opposes any reimbursement of

expenses to Ms. Atkins, and objects to the pre-taking of compensation by the personal

representative, Mr. MacDonald.

[6]

In May 2021, L & K applied to remove Mr. MacDonald as Personal Representative and

have a “professional” personal representative appointed in his stead. Their application is opposed

by the Personal Representative and by Ms. Atkins.

[7]

I heard the application on April 14, 2022 and received additional written submissions in

early May.

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Background

[8] Murray Kyle Atkins was a businessman and land developer in Calgary, Alberta. He died

in November 2019 at the young age of 49. He is survived by his widow, Kristina Kay Atkins,

and three now adult children. Mr. Atkins left a will dated November 1, 2019, naming Ms. Atkins

as his sole personal representative. Ms. Atkins is the sole beneficiary under the Will.

[9]

Ms. Atkins did not apply for probate and instead administered the Estate assets with the

assistance of her brother-in-law Shawn J. MacDonald until August 2020. At that time, Ms.

Atkins renounced her right to probate and nominated Mr. MacDonald in her place. Mr.

MacDonald applied for and was granted probate on August 5, 2020. He has administered the

Estate since then.

[10] The Estate is complex. Mr. Atkins was running an oil and gas company as well as

acquiring and developing land in the Calgary area. He owned a number of parcels of land

including a home in Utah. Estate assets include shares in corporations owned wholly or partly by

Mr. Atkins. For the purposes of this decision, it is not significant as to whether assets or debts are

corporate or personal, and I will not spend time differentiating amongst these except where

relevant. I will also only deal with the estate assets and debts that are relevant to these

applications.

[11] The oil and gas company is in receivership and it is believed unlikely that there will be

anything left over for unsecured creditors, let alone any value for the Estate. The Utah home was

sold. The debt secured against it was paid off, and there was a significant surplus for the Estate.

[12] Other assets, such as motor vehicles, are being sold by the Personal Representative. Any

proceeds to the Estate will not contribute significantly to repayment of any debt owed to L & K,

let alone unsecured creditors.

[13] There is no agreed valuation of the Estate assets, although it is common ground that the

most significant asset is property known as the “Auto Mall” in the MD of Rocky View. Those

lands are owned by Blur Investments Ltd. As best I understand the corporate structure, Blur’s

shares are owned by Bridgebank Developments Ltd. Mr. Atkins owned or controlled all the

shares in Bridgebank, subject to claims L & K has against half of the Bridgebank shares.

Depending on the value of those lands, and the ownership of the Bridgebank shares, the Estate

will either be solvent, or it will not.

[14] The Estate is indebted to L & K in the approximate amount of $50,000,000. Some of the

debt owed to L & K is personal debt; the remainder arises from personal guarantees given by Mr.

Atkins to L & K on corporate debt owed by various of his corporate entities to L & K. L & K is a

secured creditor of Bridgebank and Blur and the other corporations in the Atkins Group of

Companies that it lent money to. However, L & K has no security on Mr. Atkins assets generally

and is an unsecured creditor of the Estate.

[15] Until Mr. Atkins death, he and L & K were working cooperatively to obtain the necessary

development approval for the Auto Mall lands. Following his death, Ms. Atkins, with the

assistance of Mr. MacDonald, continued to pursue the project. Ms. Atkins paid consultants’ bills

and generally funded the operation of the various businesses out of her own resources.

[16] Ultimately, L & K grew impatient with the progress of the development and demanded

payment on Mr. Atkins’ guarantees. They followed up on the demand with an action against the

Estate for payment. L & K commenced foreclosure proceedings on the Auto Mall lands, and at

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the time of argument of this matter before me, an application for an order for sale before the

Master was pending. That application will likely turn on competing valuations of the Auto Mall

lands, which were not disclosed to me. The foreclosure is being actively opposed by the Estate.

[17] Additionally, L & K commenced an action for specific performance of an agreement with

Mr. Atkins and Bridgebank, under which L & K claims it is entitled to 50% of the shares in

Bridgebank for no consideration beyond the granting of the loan to Bridgebank and Blur. This

agreement is contained in the loan agreement between L & K and Bridgebank and Mr. Atkins

relating to the Auto Mall lands. The interpretation of this agreement is disputed by the Estate,

and the action is being actively opposed. The Estate maintains that L & K is only entitled to

acquire the Bridgebank shares if it pays market value for the shares. L & K says the

consideration for the Bridgebank shares was the granting of the loan to Bridgebank and Blur.

[18] The details of this agreement were addressed in the supplemental submissions made by L

& K, which are based on the correctness of L & K’s views of the loan agreement with

Bridgebank.

[19] If L & K succeeds in that lawsuit, it will own 50% of Bridgebank and will indirectly own

50% of Blur and the Auto Mall lands. Bridgebank will not receive any further consideration.

[20] While there are other issues between these parties on other assets, the real fight is over

the Auto Mall lands and the share transfer agreement regarding the Bridgebank shares. If L & K

is entitled to 50% of the shares in Bridgebank in addition to repayment of the debt owed to it, the

Estate will be insolvent regardless of the valuation of the lands. If L & K is obliged to pay

market value for the shares as the Estate maintains, the Estate’s solvency depends on the

valuation of the lands.

[21] A critical factor in the valuation is development approval, as well as the time horizon

necessary to develop or sell the lands.

[22] Mr. MacDonald’s application for advice and direction was initially heard on September

21, 2020. Notice of the Application had been published in the Calgary Herald in July 2020. No

one appeared to oppose the application, but Justice Dilts required that specific notice be given to

Estate creditors, of which L & K was one.

[23] Before the matter could be heard, L & K cross-examined Mr. MacDonald extensively on

his affidavit in support of the Advice and Direction application. L & K’s officer, David Thiessen,

filed an affidavit in support of its application to remove and replace Mr. MacDonald as personal

representative. He was extensively questioned on that affidavit. Both deponents gave a number

of undertakings on their cross-examinations, and additional time has been spent gathering the

undertaken documents and information.

[24] Additionally, Mr. MacDonald filed an affidavit in opposition to the application to remove

him as personal representative. Cross-examination took place on that affidavit as well.

[25] As well, L & K has advanced its collection proceedings against the Estate and the Atkins

corporations indebted to it, and they hope to have an order for sale of the Auto Mall lands soon.

[26] There are a number of issues to be determined. The first is whether Ms. Atkins can be

reimbursed for expenses she incurred relating to the Estate and Estate assets following Mr.

Atkins’ death and before she renounced her right to a grant of probate. The second issue is

whether Mr. MacDonald should be granted advance compensation as he has devoted most of his

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time and attention to the Estate since Mr. Atkins’ death. If so, what should the amount of that be?

The third issue is whether Mr. MacDonald should be removed as personal representative because

of any conflicts of interest or his actions in defending the Estate from the claims of L & K. If that

is to happen, who should be the replacement personal representative?

Reimbursement of Expenses Incurred Before Probate

[27] Mr. Atkins’ death was unexpected. It appears that his business affairs were a “one man

band”. While Mr. MacDonald had worked for Mr. Atkins for a number of years, he had left Mr.

Atkins’ employ several years earlier, although he apparently still had signing authority on some

corporate accounts.

[28] Ms. Atkins was not involved in the various businesses. Immediately following Mr.

Atkins’ death, creditors began to come forward, and some of the real estate development projects

were at critical stages. To keep the Auto Mall development progressing, consultants had to be

engaged and paid. A significant asset, the Salt Lake City home, needed to be sold to raise cash to

pay Estate expenses. By “Estate” I mean not only the real estate owned by Mr. Atkins, but also

the business operations in the various corporate entities he owned or controlled.

[29] Ms. Atkins enlisted Mr. MacDonald to return to the Atkins Group to help her pick up the

pieces and figure out what to do with the various businesses and assets. Mr. MacDonald has,

since Mr. Atkins’ death, spent most of his working time on Estate matters.

[30] In the early stages of the administration of the Estate, L & K, as the major creditor and an

investor in the Auto Mall lands, was cooperative and worked with Mr. MacDonald who had

essentially quit his job and was helping her full time.

[31] As time wore on, it became apparent that L & K was not prepared to forbear on collecting

interest on its loans indefinitely. That pressure likely led to her stepping aside and nominating

Mr. MacDonald to replace her. Immediately after Mr. MacDonald’s probate application was

granted, L & K demanded that interest payments on the various loans begin to be paid beginning

December 1, 2020.

[32] By the time of Mr. MacDonald’s appointment, Ms. Atkins had apparently spent more

than $1,500,000 to pay various expenses. Some of them had a personal component to them and

Ms. Atkins only seeks to be repaid $866,477.70. That amount, she says, is solely related to the

Estate and Estate assets. Ms. Atkins does not seek reimbursement at this stage for payments

made on debts owed to family members and friends. Those payments were not necessary to keep

any of the Estate businesses running or to preserve or protect Estate assets.

[33] It is not necessary for the purposes of this decision to break down the various payments

by dollar value. The payments made were for:

(a) Business operating expenses for Blur Investments Ltd, the company developing

the Auto Mall lands, including consulting fees for planning, water testing,

geomatic survey, engineering services, professional fees, office supplies, rent,

insurance, and minimum payments on the corporate credit card;

(b) Mortgage payments, property taxes, and consulting fees for an archeological

study on an investment property;

(c) Blur’s proportionate share of other expenses for the Rocky View lands;

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(d) Mortgage payments on another property;

(e) GST remittance, professional fees, oil and gas operating costs, and rental costs for

one of the oil and gas companies;

(f) Professional fees for another oil and gas company;

(g) A share of mortgage payments, professional fees and property taxes on another

property;

(h) Mortgage and maintenance payments for the Utah property;

(i) Property taxes on another property; and

(j) Funeral expenses.

[34] In support of the application, the Personal Representative relies on a number of

authorities:

Boje Estate, 2009 ABQB 749;

Estate Administration Act, SA 2014, c E-12.5, section 27;

Chernichan v Chernichan Estate, 2001 ABQB 923;

Widdifield on Executors and Trustees, 6th Edition, (Toronto: Carswell, 2008 at 4.61;

Bruce Estate, 2017 ABQB 67;

Gladue Estate, 2004 ABQB 130;

Anderson Estate, 2011 ABQB 806;

Wright v Beatty, 1909 382 (SCA);

Kerr v Baranow, [2011] 1 SCR 269;

Nelson v Nelson, 2001 ABQB 888; and

Surrogate Rules, AR 130/1995.

[35] L & K cites:

Snowball v Ham Estate, 2021 ABQB 497;

Boje Estate, 2009 ABQB 749;

Anderson Estate, 2011 ABQB 806;

Dirnberger Estate, 2016 BCSC 1381;

Cadwell Estate v Martin, 2021 BCSC 1089;

Garland v Consumers’ Gas Co, 2004 SCC 25; and

Vanmaele Estate, 2018 ABQB 840.

[36] Ms. Atkins refers to many of the same authorities in her submissions.

[37] The Personal Representative’s and Ms. Atkins’ arguments on reimbursement are

straightforward. She was the named personal representative. The proper fees and disbursements

of the personal representative are given a charge over the entire estate and have priority for

payment. The authority cited is my 2009 decision in Boje Estate.

[38] That position is emphasized in the Estate Administration Act, which states in para

27(2)(b):

27(1) Except as otherwise provided in an enactment, if there is a deficiency of assets

necessary to satisfy the valid money claims against the estate, the claims must be

paid proportionately and without any preference or priority.

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(2) Nothing in this section prejudices

(a) a mortgage existing during the lifetime of the deceased person on the deceased

person’s property, or

(b) a common law priority given to the payment of funeral and estate

administration expenses.

(3) If the personal representative pays more to a claimant than the amount to which

the claimant is entitled under this section, the overpayment does not entitle any other

claimant to recover more than the amount to which that claimant would have been

entitled if the overpayment had not been made. (Emphasis added)

[39] As stated in Widdifield at paras 73-74, the executor’s duty is to “ascertain the debts and

liabilities due from the testator’ estate, pay such debts and liabilities and attend to the legal and

proper distribution of the estate among the persons entitled.”

[40] As an alternative argument, the Personal Representative argues that if Ms. Atkins is not

reimbursed for these expenses, the Estate will be unjustly enriched at her expense. Mr.

MacDonald argues that the three elements in Kerr v Baranow, [2011] 1 SCR 269 have been met:

that there has been enrichment of or benefit to the Estate; that Ms. Atkins has been

correspondingly deprived; and there was no juristic reason for the enrichment.

[41] If the expenses are not reimbursable as estate administration expenses, Ms. Atkins would

arguably be an unsecured creditor for these amounts. Depending on the ultimate outcome of the

realization of assets and payment of Estate debts, Ms. Atkins’ payments will “serve only to

enrich the estate’s creditors”.

[42] Ms. Atkins was under no obligation to make any of these payments out of her own funds.

As a result, Ms. Atkins is entitled to a constructive trust to the extent of these payments and may

have a higher priority to payment than other creditors including secured creditors. They rely on

Nelson v Nelson, 2001 ABQB 888 in that regard.

[43] L & K counters these arguments, noting that apart from funeral expenses, most of the

payments made by Ms. Atkins were to Blur so that Blur and other companies in the “Atkins

Group of Companies”, could carry on their key activities. Other payments were made directly to

other companies in the Group, or to creditors of these companies. Most of the funds are owed to

Ms. Atkins by these companies, and not directly by the Estate.

[44] L & K says that only expenses incurred incidental to performance of the Personal

Representative’s “core duties” are given priority for payment by the Estate. They distinguish

between payment of Estate debts and the Personal Representative’s costs incurred in causing the

Estate to pay its debts and liabilities. They argue that personal representatives can reimburse

themselves for “the time spent instructing accountants to make a payment on behalf of the

estate” but not for the payment itself if the payment comes from the Personal Representative’s

own funds and not Estate funds.

[45] As for the Personal Representative’s alternative argument that Ms. Atkins should be

entitled to reimbursement on the basis of unjust enrichment, L & K notes that the funds advanced

to Blur (which constitute the majority of the claim) create a debtor-creditor relationship between

Ms. Atkins and Blur, which negates the absence of a juristic reason for the payments. She should

collect the funds from Blur and not the Estate.

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[46] L & K argues that Garland v Consumer’s Gas is applicable here to the extent that “an

innocent defendant has materially changed its position in good faith as a result of the

enrichment” (at para 63 of that case). They argue (if I understand their position) that the Atkins

Group of Companies changed their position as a result of these payments in that they permitted

Blur and other Estate corporations to stay in business by forbearing on collecting interests rather

than forcing the corporations to reorganize or go into receivership.

[47] L & K also objects to the Personal Representative’s standing to assert a claim on behalf

of Ms. Atkins against the Estate.

[48] Counsel for Ms. Atkins emphasizes that the payments made by Ms. Atkins allowed the

Estate’s businesses to be continued to maximize their value to the Estate. Mortgage payments

prevented creditors taking action against the Estate or any of its corporations. Payments to

consultants allowed development projects to proceed.

[49] A significant portion of the amount claimed by Ms. Atkins relates to payments she made

to or for Blur. Those funds allowed Blur to make mortgage payments to the credit union with

first charge against those lands (ahead of L & K’s claims) and to advance the progress of the

development of the Auto Mall on those lands. Those payments and the work benefitted L & K to

the extent that the lands became more valuable. In any circumstances, a lower first mortgage

balance and increased value would work to L & K’s advantage. The same can be said for

mortgage or other payments made on properties that were or are subject to L & K’s security.

Paying down debt ahead of L & K and maintaining property value or increasing it was an

advantage to L & K.

[50] The payments made in relation to the Utah property allowed that property to be sold at an

advantageous price, which brought needed funds into the Estate for the benefit of all creditors.

Analysis

[51] I note that the Trustee Act, RSA 2000, c T-8 has slightly different wording than the Estate

Administration Act regarding payments to Trustees. Section 25 provides:

25 A trustee is chargeable only for money and securities actually received by the

trustee, notwithstanding the trustee signing any receipt for the sake of conformity,

and is answerable and accountable only for the trustee’s own acts, receipts, neglects

or defaults and not for

(a) those of any other trustee,

(b) any banker, broker or other person with whom any trust money or securities

may be deposited,

(c) the insufficiency or deficiency of any securities, or

(d) any other loss, unless it happens through the trustee’s own wilful default,

and may reimburse the trustee or pay or discharge out of the trust property all

expenses incurred in or about the execution of the trustee’s trust or powers.

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[52] The case law cited is not of much assistance in the circumstances of this case. It supports

the charge and priority given to personal representatives. They focus on the personal

representative’s compensation. In Boje Estate, I noted that “even with an insolvent estate,

funeral, testamentary and administration expenses are paid in priority to other claims and

bequests” (at para 44). I was not dealing with “administration expenses” in any detail, nor were

there competing debt claims against the Estate.

[53] I did state that “compensation normally includes reimbursement for proper expenses,

such as solicitor’s fees and disbursements in defending claims against the estate” (at para 45).

[54] The only case that appears directly on point is Wright v Beatty, a 1909 decision of Justice

Stuart. There, he dealt with the priority given to executors for cost incurred in continuing the

testator’s business after his death.

[55] Stuart J references Dowse v Gorton, [1891] AC 190 and states at page 94 that there are

only two grounds upon which executors carrying on the testator’s business after his death in

priority to general creditors. The first is where the executors simply continue to carry on the

business temporarily and for the mere purpose of effecting a sale of it as a going concern and not

with a view to any permanent operation. It must be carried out as a “money earning enterprise”.

If they go beyond that, they will not be entitled to indemnity unless the creditors have “directly

assented to their so doing”.

[56] At page 97, Stuart J stated:

The principle seems to be that the liabilities incurred by the executors in temporarily

carrying on a testator’s business are to be treated as part of the ordinary costs, charges

and expenses of their administration…insofar as they are proper and not due to the fault

of the executors, the law appears to be clear that the executors are entitled to have these

treated as a first charge upon the estate.

[57] In that case, the dispute was between the executor and a secured creditor, the mortgagee

of the hotel.

[58] Stuart J referenced the established principle that secured creditors are entitled to get their

debt, interest and costs in priority to the costs, charges and expenses of the executors. (at page

98).

[59] But he went further and held at page 99:

I am of opinion that the rigid rules as to the priority of a secured creditor ought to give

way to the force of any circumstances which make such a claim substantially unjust.

[60] Stuart J continued, noting that had the executors simply shut down the business on the

testator’s death, the value of the property would have been “enormously depreciated” and their

action was not merely wise but “in accordance with their duty.”

[61] An appeal from that decision was quashed because the mortgage company had taken the

benefit of the decision and thus lost their right of appeal.

[62] This decision has been considered only twice in the 113 years since it was decided. In

Netherlands Investment Co v Des Brisay, 1928 607 (ABSCAD), it was cited at page 303

as supporting the principle that “authority in the will to carry on the business is of itself effective

not against the creditors but only as against the beneficiaries.”

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[63] The Appellate Division was considering a situation where the executors were concerned

that the existing first mortgagee would foreclose the lands and they took out a new mortgage on

the lands as executors. Ultimately, the value of the mortgaged lands was insufficient to pay off

the new mortgage, and the executors sought indemnity from the estate for the deficiency, for

which they were personally liable to the mortgage company.

[64] At page 304, the Court described the executors’ actions as “unquestionably bona fide”

and held:

…under the terms of the will, at all events by implication, the executors had authority to

substitute their own mortgage to the Royal Trust Company…It would, under these

circumstances, be less than justice if the executors were not allowed to indemnify

themselves out of the estate as a whole for any deficiency which eventually occurred by

reason of the unforeseen depreciation in the value of the property.

[65] The Court clearly distinguished between the position of the beneficiaries and creditors,

although it is unclear if any creditors were impacted by these events.

[66] The Saskatchewan Appellate Division referred to Wright v Beatty in Lemcke v Newlove,

[1926] 171 (SKSCAD). Wright v Beatty was only cited in argument and played no role

in the decisions. The case is helpful only for the statement of Martin JA at para 38:

[38]

Where assets of a testator have come into the hands of an executor and are

afterwards lost to the estate, the rule of law, as well as of equity, is that the executor

stands in the position of a gratuitous bailee, and therefore cannot be charged without

some wilful default’ (Job v. Job, 6 Ch. D. 562, 26 W.R. 206; Williams on Executors, 11th

ed., p. 1127).

[67] I note that in Hutton v Holt, 1950 427 (ABSC), McBride J considered the

Netherlands decision and stated at page 24;

[68] At common law, an executor, unless the will peremptorily required an absolute sale,

could raise money for administration purposes by a mortgage of the assets vested in him.

[69] It is interesting that the issue of an executor or personal representative continuing the

testator’s business has not been the subject of more litigation in Alberta. The only decision with

somewhat similar facts is a 1909 decision from the Alberta Supreme Court which gave priority

to the executor’s “administrative expenses” over a secured creditor. A 1928 Appellate Division

decision held that the costs of carrying on the testator’s business by the executor did not have

priority “over the claims of creditors”. They did not distinguish between secured creditors and

general creditors. Creditors of any nature were, however, not a live issue in Amsterdam so the

facts are quite distinguishable.

[70] Both cases rely on Dowse v Gorton, an 1891 House of Lords decision. On appeal was a

decision from the Court of Appeal, which had held:

That the executors of (the estate) are entitled as against and in priority to the person to

whom he was indebted at the time of his death, to be indemnified out of such part of the

estate as has been acquired by the executors since his death against debts or liability

incurred by the said executors in carrying on his businesses.

[71] The House of Lords decision was about the distinction between assets obtained at the

time of the testator’s death and after-acquired assets. Lord Herschell stated at page 199:

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I think it is clear that where a business has been carried on under such an authority as was

conferred upon the executors by the will of this testator, they would be entitled to a

general indemnity out of the estate as against all persons claiming under the will. But I

take it to be equally clear that they could not, by reason only of such authority, maintain

this right against the creditors of the testator. The executors would, no doubt, be entitled

to carry on a business of the testator for such reasonable time as was necessary to enable

them to sell his business property as a going concern, and would even, as against his

creditors, be entitled to an indemnity in respect of the liabilities properly incurred in so

doing. But, in the present case, the businesses were carried on for a period of three years;

and it is obvious that this was not done merely for the purpose of effecting a sale.

I agree with the contention of the learned counsel for the appellants, that the mere fact

that a creditor stood by under such circumstances and did not immediately take steps to

enforce his debt, would not of itself entitle the executors, as against him, to be

indemnified out of the estate. But when all the circumstances of the case are considered, I

do not think this is the true view of them.

[72] While Stuart J’s decision in Wright v Beatty is not binding on me, Dowse v Gorton is.

These are both good decisions and provide wisdom from the ages that is still valid. Priorities

were not in issue in Netherlands and I do not think the general statement on creditors in that case

modifies or varies the House of Lord’s decision.

[73] In this case, Ms. Atkins was the personal representative of the Estate. The will speaks

from the testator’s death. She did not require a grant of probate to act in that capacity. The

validity of the will was accepted when probate was granted to Mr. MacDonald in August 2020.

[74] The amounts spent by Ms. Atkins include funeral costs. Those are undoubtedly proper

estate expenses, subject only to them being reasonable. The other costs related to preserving the

status quo with the Estate, and the interests the Estate had in Mr. Atkins’ businesses.

[75] I recognize L & K’s arguments that Ms. Atkins was largely paying debts of Estate-owned

companies rather than Mr. Atkins’ personal obligations. In many cases, the corporate veil is key,

and it is important to separate corporate debts from personal debts.

[76] What distinguishes the corporate veil here is that almost the entire value of the Estate (but

for cars and toys) is tied up in the value of the shares it owns in the corporations comprising the

Atkins Group of Companies. If the Estate hopes to realize any value to pay off its creditors and

possibly leave something left for the beneficiary, it will be through the realization of its

investment in these corporate entities. Standing by and watching a potentially viable business, or

potentially valuable piece of land be lost through foreclosure, or devalued by forced sale, or

unmaintained, is not in the Estate’s interests.

[77] Here, I am satisfied from the evidence before me that Ms. Atkins’ intentions were, at

least with respect to the monies she currently seeks reimbursement for, to preserve, maintain and

hopefully improve the Estate’s assets. Payments that might have a personal component to them

or might be challenged as an improper preference in favour of unsecured creditors, have been

excluded from her claim for reimbursement as estate administration costs. She will remain an

unsecured creditor for those payments.

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[78] Equitable principles are at play here and I am mindful of the provisions of section 8 of

the Judicature Act, RSA 2000, c J-2:

8 The Court in the exercise of its jurisdiction in every proceeding pending before it has

power to grant and shall grant, either absolutely or on any reasonable terms and

conditions that seem just to the Court, all remedies whatsoever to which any of the parties

to the proceeding may appear to be entitled in respect of any and every legal or

equitable claim properly brought forward by them in the proceeding, so that as far as

possible all matters in controversy between the parties can be completely determined and

all multiplicity of legal proceedings concerning those matters avoided.

[79] I doubt that the conditions necessary for unjust enrichment are made out in this case.

Absent reimbursement there will be a deprivation. There was a corresponding benefit to the

entities the funds were advanced to. The overall debt obligations of the entities the Estate is

interested in was reduced. Corporations such as Blur benefited from having funds injected into

them, allowing them to continue in business and pay some of their debts. Creditors such as L &

K benefitted by having Blur and other companies in the Atkins Family of Companies make

payments to secured creditors, ultimately reducing the amount of debt ahead of theirs in the

priority scheme.

[80] The difficulty is in the context of juristic reason. Ms. Atkins is the sole beneficiary of the

Estate. When the payments were made, they were likely made with the expectation that any

benefits to the Estate would eventually come back to her. Advances to Blur were in essence a

loan to Blur and repayable to her. The absence of a juristic reason is not likely made out by a

creditor being unable to repay a debt.

[81] L & K argues that any claim for unjust enrichment is negated because L & K changed

their position in good faith as a result of the enrichment. They cite Garland v Consumers’ Gas

Co on that point. I would note in that regard, however, that there is no evidence on this

application that L & K was aware that Ms. Atkins was using personal funds to prop up Blur and

other entities or that their position has been harmed as a result. If anything, L & K has benefitted,

at least partly, by the amount of any mortgage payments and tax payments on any property they

have security against, and any forbearance on proceedings does not appear to have been as a

result of any undertaking on Ms. Atkins’ part to inject funds into any corporation or project.

[82] In any event, I do not need to decide the unjust enrichment issues because of my

conclusions based on Wright v Beatty and Dowse v Gorton.

[83] L & K’s main objection to reimbursement of Ms. Atkins is that they are unsecured

creditors of the Estate to the extent that they are unable to be fully repaid through realization of

their security on the Atkins Group corporations and real estate. They have no security against

Mr. Atkins. He has personal debt to L & K as well as potential liability on an unsecured

guarantee he gave covering all of L & K’s loans to Atkins Group corporations. L & K believes

their claims against the Estate will significantly outweigh any claims Ms. Atkins has, to the

extent she is an unsecured creditor as well. They are of the view that her claims for

reimbursement (but for the funeral expenses) should rate pro rata with theirs under section 27 of

the Estate Administration Act.

[84] L & K cites Snowball v Ham Estate. That case involved a claim against an insolvent

estate. The claimant was not the deceased’s personal representative. The claimant was not

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employed by the deceased, nor was she a partner in his law firm. Her claim against the estate

arose from a fee-splitting agreement she said she and Mr. Ham made on a claim they were both

involved in. No specific percentage was discussed but she understood it would be 50%. A third

lawyer was specifically engaged by the client, and he and Mr. Ham entered into a contingency

agreement. The matter settled and the other lawyer sent Mr. Ham his share of the fee. Ms.

Snowball was not party to the contingency fee agreement.

[85] The other lawyer was aware of Ms. Snowball’s work on the file and knew that Mr. Ham

had undertaken to pay her out of his share of the contingency fee.

[86] Jones J faced two issues. The first was whether there was any agreement by Mr. Ham to

pay Ms. Snowball; the second was whether the undertaking gave rise to a trust in favour of Ms.

Snowball. That argument was rejected as being “uncomfortably close to an improper attempt to

elevate (the claim) over other creditors of the Estate

[87] No such considerations apply here. Once Ms. Atkins’ payments are recognized as estate

administration expenses, they are automatically elevated over the claims of other creditors. This

case does not help L & K here.

[88] It is also not helpful to compare the amount of the payments made and sought to be

reimbursed to personal representative compensation. Compensation for the personal

representative is over and above reimbursement for estate administration expenses.

[89] Having found Ms. Atkins to be a secured creditor ranking ahead of unsecured claims, L

& K’s objection basically evaporates. I did not hear in argument or read in any of their

submissions that any of the payments made were improper. There has been no challenge to Ms.

Atkins’ good faith in making these payments. There was an objection to the amount of the

funeral costs, but my understanding is that objection was withdrawn at the hearing of the

application.

[90] To the extent that there are funds in the Estate that are not subject to any security interest,

they may be used by the Personal Representative to repay Ms. Atkins for the monies spent by her

from her personal resources for estate and estate administration expenses.

[91] In the administration of an estate, personal representatives have a number of decisions

they must make. One of them is to determine what claims against the estate are valid. They do

not need to go to the beneficiaries or other creditors to make that decision. If they make a bona

fide and reasonable assessment of a claim, they have some protection from claims against them.

When the personal representative passes accounts, the standard of review is not necessarily

correctness. The Trustee Act provides in section 41:

41 If in any proceeding affecting trustees or trust property it appears to the court

(a) that a trustee, whether appointed by the court or by an instrument in writing or

otherwise, or that any person who in law may be held to be fiduciarily

responsible as a trustee, is or might be personally liable for any breach, whether

the transaction alleged or found to be a breach of trust occurred before or after

the passing of this Act, but

(b) that the trustee has acted honestly and reasonably and ought fairly to be excused

for the breach of trust and for omitting to obtain the directions of the court in the

matter in which the trustee committed that breach,

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then the court may relieve the trustee either wholly or partly from personal liability

for the breach of trust.

[92] Here, if the Personal Representative has satisfied himself that the claims are proper estate

administration claims by Ms. Atkins, he may choose to make those payments. I do not think that

such a decision would necessarily absolve him in advance for any lack of good faith or lack of

reasonableness.

[93] I have no reason on this application to doubt the reasonableness of the payments or Ms.

Atkins’ good faith. Nor do I see on the evidence before me that Mr. MacDonald would be

unreasonable or acting in bad faith by reimbursing her.

[94] But payment authorization by the Court could only be done with a line-by-line, dollar-by-

dollar analysis in a process akin to passing accounts. That has not been done here and without

looking at each receipt and having an explanation for each payment, I do not think it is

appropriate to give Court absolution.

[95] Mr. MacDonald has nearly three years of involvement with the Estate and is intimately

familiar with what payments have been necessary to preserve the Estate assets, including the

value of the corporations owned or partly owned but controlled by Mr. Atkins. By bringing this

application, and providing sworn testimony in support of it, it seems to me that he is confident as

to the genuineness of the payments and the benefits to the Estate by reason of those payments

having been made.

[96] At this stage, the call is his to make, but he can make the call confident that all valid

claims by Ms. Atkins rank in priority to the claims of any creditors with respect to any funds that

legitimately come into the possession of the Estate.

[97] If he is uncomfortable making the call, Ms. Atkins should take comfort that

reimbursement of all proper expenses made by her is a priority on Estate assets.

Pre-taking of Compensation

[98] Mr. MacDonald seeks an order allowing him to take compensation from the Estate for

work done to date. He also seeks ongoing compensation of $12,000 per month.

[99] In support of the application, Mr. MacDonald’s affidavits describe in great detail what he

has done on what he calls “estate administration and family office manager roles”. He estimates

that he has been working between 55 and 60 hours a week to run the active family businesses

and administer the estate since Mr. Atkins died in November 2019.

[100] He estimates that he has spent between 2500 and 3000 hours in total working on the

Estate. Mr. MacDonald has done so without pay, and he has put his real estate career on hold. He

says that he needs compensation to be able to continue with his duties.

[101] Ms. Atkins supports Mr. MacDonald’s application.

[102] The amount - $12,000 per month since November 2019 and ongoing – is based on the

amount Mr. Atkins was paying himself while he was running the businesses.

[103] L & K objects to any pre-taking of compensation by Mr. MacDonald for the work he has

done and time spent administering the Estate since he became Personal Representative. They do

not appear to dispute the amount of time he claims to have spent, or the nature and magnitude of

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the tasks he has undertaken. Their objections are based on their submissions that Mr. MacDonald

has failed to discharge his duties as Personal Representative and complete the core tasks of a

personal representative.

[104] In particular, L & K says that Mr. MacDonald has failed to identify the nature and extent

of Mr. Atkins’ debts and to take necessary steps to ensure payment of these debts. L & K

complains that interest and costs continue to accrue on these debts to the prejudice of the Estate.

[105] The reality is that the only creditor complaining about the administration of the Estate is

L & K. The debts about which they worry about accruing interest and costs are the debts owed

by the Estate to them.

[106] They also submit out that Mr. MacDonald has placed himself in a conflict of interest

numerous times in the course of his administering the Estate. Mr. MacDonald is a licensed

realtor. L & K notes that Mr. MacDonald would not agree to listing lands owned by 1181814

with agents other than himself while standing to make a commission on the sale of those lands

himself, as well as his acting as agent for the sale of Estate lands on which he received a

commission in the amount of $41,719.75.

[107] L & K argues that Mr. MacDonald stands to make a commission on the sale of other

Estate lands and that these factors should disentitle him to receiving any compensation from the

Estate as Personal Representative.

[108] L & K cites Vanmaele Estate where the personal representatives’ compensation was

reduced because they had not been “good stewards”.

[109] L & K’s objections are intertwined with their cross-application to have him removed as

Personal Representative, and I will thus deal with that application before ruling on the pre-taking

of compensation. I will come back to this later.

Removal of Mr. MacDonald as Personal Representative

[110] L & K seeks the removal of Mr. MacDonald. They say that since the fall of 2020, Mr.

MacDonald has essentially been working against their interests. While L & K and Mr.

MacDonald appear to have been cooperating to find a way for the Estate to repay L & K until

then, when L & K sought the transfer of shares in Bridgebank to them. Mr. MacDonald refused

to transfer the shares to them, and at the same time commenced the application for

reimbursement to Ms. Atkins and advance compensation for himself.

[111] L & K made demand for repayment to all of the Atkins Group companies and on Mr.

Atkins’ guarantee in November 2020 and commenced various lawsuits in December.

[112] Essentially, L & K argues that Mr. MacDonald is breaching his duties as personal

representative by not recognizing the validity of their claims, transferring the Bridgebank shares

and not defending the claims they have made against the Estate.

[113] They argue that he is attempting to give Ms. Atkins priority to claims they characterize as

unsecured debts to their unsecured claims against the Estate. L & K fears, not unreasonably, that

the Estate’s assets (including its investments in corporations like Bridgebank and Blur) will be

insufficient to satisfy their legitimate claims.

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[114] In their application they seek orders removing Mr. MacDonald, or that Mr. MacDonald

satisfy all of L & K’s claims within 60 days, failing which they would have leave to revisit the

removal application.

[115] L & K maintains that Mr. MacDonald has already been compensated for his work by the

real estate commission he received.

[116] What L & K is arguing is that since Mr. MacDonald acknowledged in questioning that

Mr. Atkins gave an unlimited personal guarantee of a $15,000,000 loan by L & K to Bridgebank

and that Mr. Atkins guaranteed a mortgage on other lands owned by Mr. Atkins, he has breached

his duties by not paying L & K whatever funds he had, and that he also breached his duties by

using the monies loaned by Ms. Atkins to pay claims of other creditors as well as creditors of

companies owned by Mr. Atkins such as Blur.

[117] They complain that Mr. MacDonald has been in a conflict of interest by:

(a) Preferring the interests of the beneficiary, Ms. Atkins, over the interests of the

Estate’s major creditor, L & K;

(b) Acting as listing agent on one of the Estate properties;

(c) Refusing to consider other real estate agents to market the Auto Mall lands; and

(d) Requesting loans from Ms. Atkins as if she is not able to recover them from the

Estate, she may have a personal claim against Mr. MacDonald.

[118] L & K says Mr. MacDonald has also personally benefitted from the Estate by obtaining a

commission on one of the Estate properties.

[119] The Personal Representative has responded on the merits of the application, as well as on

the basis that L & K has no standing to bring such an application. Mr. MacDonald argues that a

creditor is not a person “interested in the estate”. He relies on the Surrogate Rules for that

argument.

[120] He says that while “unpaid claimants” have status in relation to “contentious estate

matters”, section 78 limits the people who have standing to request relief regarding the

appointment of a personal representative.

[121] The Personal Representative cites Thomlinson Estate, 2016 BCSC 1223 and the cases

cited therein in support of his position that creditors do not have standing to seek the removal of

a personal representative. He notes that Wood’s Home Society v Selock, 2021 ABCA 431 and

Ocean Man Trust, (1993), 113 Sask R 179 (SKCA) emphasize the interests of the beneficiaries

under the will in disputes over the personal representative.

[122] Mr. MacDonald references Atlantic Jewish Foundation v Leventhal Estate, 2018 NSSC

297 as authority for the Court granting personal representatives’ compensation before the passing

of accounts.

[123] As for acting in dual capacities, he cites:

Mykytuk Estate, 2010 ABQB 239; and

Winkler v Winkler, 2015 BCSC 80.

[124] Forbes v Gauthier Estate, 2008 41574 (ONSC) notes that a “testator would

certainly not expect his or her chosen executor/executrix to resign that role simply because a

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dispute has arisen as a result of a claim being advanced by an alleged creditor even where the

executor/executrix is also a beneficiary of the estate” (at para 13).

[125] Warren Estate, 2015 ABQB 420 and Parker v Christopher Parker Family Trust, 2014

BCSC 1916 deal with the tests for removing personal representatives.

[126] Raye v Phillip Estate, 2021 BCSC 387 and Schnuerer Estate, 2019 ABQB 830

emphasize the importance of the beneficiary’s support for or opposition to the personal

representative.

[127] Twinn v Trustee Act, 2022 ABQB 107 was cited in argument.

[128] Mr. MacDonald also cites a number of cases supporting its argument that L & K’s

application is an abuse of process, which I will not cite. That argument is appropriate for costs

but not on the merits of the application itself.

[129] L & K cites:

Estate Administration Act, s 8;

Smith v Lister, 2015 ABQB 420;

Lakeman v Bayne, 2016 ABQB 180;

Waters’ Law of Trusts in Canada, 4^thed, Toronto: Carswell 2012;

Rose v Rose, 2006, 24 ETR (3d) 217 (ONSC);

Orenstein v Feldman, (1978), 2 ETR 133 (ONHC);

Re Consiglio Trusts (No 1), [1973] 3 OR 326 (ONCA);

Wood’s Homes Society v Selock, 2021 ABCA 431;

Staub v Staub Estate, 2003 ABCA 122;

Stevens v Whittaker, 2012 BCSC 1188;

Hughes (Estate) v Brady, 2007 ABCA 277; and

McDonald Estate, 2012 ABQB 704.

Analysis

[130] There is no doubt that the Court has the jurisdiction to remove a personal representative if

there are ground to do so. There is no dispute over the tests for removal of a personal

representative. The cases are all fact driven.

[131] Essentially, all of the complaints against Mr. MacDonald boil down to the fact that he has

not capitulated to the demands of L & K. Instead, he has attempted to preserve the Estate with

the hope that there will be something left over for the beneficiary after the debts are paid.

[132] I have described the basic fight above. There are two real issues: the value of the Auto

Mall lands and the validity of L & K’s claims that it is entitled to half of the shares in

Bridgebank for nothing. L & K may be right. The Personal Representative’s valuation of the

Auto Mall lands may be wishful thinking. And L & K may be entitled to half of Bridgebank.

[133] If either of L & K’s positions is successful, on the information before me for the purpose

of these applications, the Estate should essentially turn over all of its keys to L & K and walk

away.

[134] By removing Mr. MacDonald, L & K recognizes that there will still need to be a personal

representative. They propose that a professional trustee be retained. As I understand it, the

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professional trustee would then act as a liquidator, with the main priority being the realization of

assets and the paying off or at least down of L & K’s debts.

[135] I am not in a position to opine on the merits of either side’s cases. From what I have been

provided with, I have no basis on which to value the Auto Mall lands. That is undoubtedly taking

place in the foreclosure action in Masters Chambers. I also have no basis on which to determine

if there is merit to L & K’s arguments on the Bridgebank share transfer agreement or to the

Estate’s opposition to that claim. Their supplemental submissions in that regard are interesting

but not determinative.

[136] I cannot determine if the Personal Representative is advancing his arguments with any

realistic chance of success. But they are not on the information before me doomed to fail.

[137] The determination on the reasonableness or bona fides of the Estate’s opposition to L &

K’s positions will be determined in the foreclosure action or the specific performance action on

the Bridgebank shares.

[138] The beneficiary has a claim against the Personal Representative to take reasonable steps

to maximize her recovery from the Estate, just as he is responsible to taking reasonable steps to

satisfy the claims of creditors.

[139] Granting L & K’s application to remove Mr. MacDonald would be akin to granting

summary judgment on both issues to L & K.

[140] I cannot make a determination that Mr. MacDonald has committed any of the defaults

alleged by L & K until these two fundamental issues have been resolved. In normal

circumstances, personal representatives are entitled to defend against claims made against the

estate as long as they are acting in good faith. They may use estate funds to pay for the legal fees

in defending such claims.

[141] If Mr. Atkins were alive, I expect he would be defending the L & K claims vigorously,

using whatever personal and corporate resources he could muster.

[142] Absent impropriety or bad faith of some sort, it would be a remarkable situation if an

unsecured creditor such as someone holding a personal guarantee could enjoin a debtor from

doing so. I do not think that an estate is automatically in a different position.

[143] Indeed, L & K has not referred me to any case law where a personal representative has

been removed on the application of a creditor. The “usual” situation is where there are multiple

personal representatives and they cannot get along. Or the personal representative and the

beneficiaries are at odds on the administration of the estate. The test in Re Consiglio Trusts was

whether the personal representatives’ misconduct or other behaviour made the continued

administration of the estate impossible.

[144] Here, Mr. MacDonald has no personal interest in the matter, but for being compensated

for his work. He is not a beneficiary.

[145] In many cases, the personal representative is a beneficiary under the will. It is not unusual

for the personal representative to be a testator’s spouse, who may also be the sole beneficiary.

That is the case here. L & K’s argument, if accepted, might disqualify such personal

representatives from defending claims against the estate. That cannot be correct, as one of the

personal representative’s main duties is to protect and preserve the interests of the beneficiaries.

Creditors have their legal remedies against estates and should only in very rare cases have any

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say in how an estate is to be administered. Administering an estate is not the same as bankruptcy

or insolvency proceedings, which are essentially for the benefit of creditors.

[146] Any alleged conflicts and allegations of misconduct are based on L & K’s arguments that

Mr. MacDonald should have spent the last nearly two years liquidating the Estate and paying

everything over to L & K rather than delaying liquidation and fighting L & K’s collection

activities. There is nothing inherently wrong with the Personal Representative performing

services for the Estate beyond those in the “core” services, as long as it is in the Estate’s best

interests that he do so, and that does not automatically put the Personal Representative in a

conflict of interest. Generally, some harm or risk of harm needs to be made out, and that has not

been done here.

[147] The alleged conflicts in being listing agent are not automatic disqualifiers. It has yet to be

shown that Mr. MacDonald did not perform these services skillfully and for the benefit of the

Estate, or that any other realtor would have done better.

[148] Compensation earned by performing non-core services are undoubtedly something that

will be taken into account when ultimately assessing personal representative compensation on

passing account, and may be a factor in any pre-taking application, but this is not a

disqualification or removal issue.

[149] I do not think it lies in L & K’s mouth to argue that Mr. MacDonald has acted contrary to

Ms. Atkins’ best interests, or that he has been negligent. She is satisfied with his efforts and

supports his claims for compensation here and wants him to continue as Personal Representative.

[150] It is curious that L & K would use Ms. Atkins’s advances to the Estate as an example of

Mr. MacDonald’s mismanagement. L & K would have required her to make the payments to

them and not to other creditors. These advances all appear to have been made before Mr.

MacDonald was the Personal Representative and he was acting at that time as an unpaid advisor

to Ms. Atkins. There is no merit to this argument.

[151] At this stage and on the information before me, I see no valid basis to remove Mr.

MacDonald as Personal Representative.

[152] While my conclusion on the merits makes the issue of L & K’s status to bring a removal

application somewhat moot, I dealt with the application on its merits because I do not accept the

Personal Representative’s argument that a creditor has no status to bring an application to

remove a personal representative. I recognize that a creditor has no general status to be involved

in the appointment of a personal representative, that may not be an absolute as there may be

situations where there may be no beneficiary or family member interested in administering an

insolvent estate and only creditors have an interest in seeing that an orderly administration

occurs.

[153] Normally, if a personal representative refuses to pay just debts with no valid reason,

creditors will address that by getting judgment against the Estate and seeking costs against the

personal representative personally. Where the defences are frivolous, expedited remedies are

available. I am not satisfied that the personal representative is acting frivolously or in bad faith in

defending L & K’s claims at this stage.

[154] The Surrogate Rules are intended to provide an orderly process for the administration of

estates and to deal with contentious business. They do not amend the Administration of Estates

Act, which itself provides no limits on who can make an application to remove a Personal

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Representative. I note that the recent case of Twinn v Trustee Act gives a wide interpretation to

what may be dealt with on an advice and direction application.

[155] In any event, L & K’s application to remove Mr. MacDonald and have him replaced with

a professional trustee is dismissed on the merits of the case, and not on procedural grounds.

Conclusion on Compensation

[156] I am satisfied that this is an appropriate situation to grant Mr. MacDonald some interim

compensation. This is a very complicated and unfortunately a very contentious estate.

Compensation is generally based on the gross assets of the estate, not the net assets. Here, the

Estate might be roughly estimated as having assets in the range of at least $50,000,000.

Professional trustees might easily be looking at a fee of 1% of the value of the Estate (0.5% to

3%) and 1/10% to 4/10& on an annual basis. That is contemplated in the Legal Education

Society of Alberta’s “Suggested Fee Guidelines”, as I referenced in Boje Estate at para 113.

[157] I have been given no real assistance with respect to an appropriate basis for interim

compensation here. The only guidance is that Mr. Atkins was apparently paying himself

$120,000 per year from his various corporate entities by way of salary. There were undoubtedly

other benefits Mr. Atkins was realizing.

[158] Some of the time Mr. MacDonald spent was for physical work in making the Utah home

saleable. That work does not warrant a high hourly rate. But overall, he has been acting as the

CEO of an active land developer. Using the benchmark of Mr. Atkins’ own salary, his

replacement should not expect to be paid at the same rate.

[159] I set interim compensation at $100,000 per year, starting with the date of Mr.

MacDonald’s appointment in August 2020. That should continue to the date the application was

heard, namely April 2022. That is at the lower end of the Fee Guidelines.

[160] From the description of the status of various Estate issues in the materials for these

applications and at the applications themselves, it does not appear that Mr. MacDonald is

required to attend to Estate matters on a full-time basis. The development of the Auto Mall lands

appears to be on hold waiting for development approval from municipal authorities, and the

results of the foreclosure and specific performance litigation. The oil and gas business is

essentially defunct, and some of the other assets, including the Utah property and the Hillspring

lands, have been sold. To a large extent, Mr. MacDonald may be acting as the Estate’s affiant

and witness in various lawsuits. That should not be a full-time endeavor.

[161] In the absence of any other information, I set Mr. MacDonald’s ongoing interim

compensation at $75,000 per year until further order.

[162] At this state, I will not deduct the commission or commissions Mr. MacDonald has

earned. The righteousness of him acting as listing agent for any of the Estate properties has not

been established and will have to be taken into account as a factor in setting Mr. MacDonald’s

final compensation when his accounts have been passed. That may be many years from now,

depending on the results of the ongoing litigation.

[163] I am not concerned about this interim award overcompensating Mr. MacDonald. His

ultimate compensation, barring any improper conduct on his part, will likely far exceed the

amounts in this award.

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Conclusion

[164] Mr. MacDonald may reimburse Ms. Atkins for amounts he considers appropriate for

expenses she incurred in the administration of the Estate from Mr. Atkins’s death until Mr.

MacDonald’s appointment as Personal Representative. This permission is based on my decision

that Ms. Atkins is entitled to priority for proper expenses incurred by her personally to pay

proper Estate costs as well as monies expended by her to keep the Atkins Group of Companies

operating.

[165] As discussed, Mr. MacDonald’s risk in doing so is in relation to his assessment of the

nature of the expenses and receiving a proper accounting for them and any ultimate

determination by the Court (if necessary) that these funds were expended by Ms. Atkins in good

faith and for the stated purposes.

[166] Mr. MacDonald is entitled to interim compensation from the Estate at the rate of

$100,000 per annum from the date of his appointment until April, 2022. Thereafter, Mr.

MacDonald is entitled to take monthly interim compensation at $75,000 per month until further

court order.

[167] L & K’s application to remove Mr. MacDonald is dismissed.

[168] Costs may be spoken to by written submissions, but I am inclined to think that it may be

more appropriate to have costs dealt with at a later date when the results of some of the other

litigation is known and the merits of the parties’ positions can be better assessed.

Heard on the 14^thday of April, 2022.

Dated at the City of Calgary, Alberta this 22^ndday of June, 2022.

Robert A. Graesser

J.C.Q.B.A.

Appearances:

Brynne Harding, Bennett Jones LLP

for the Applicant

Jared Kantor, Kantor LLP

for Kristina Atkins

Jennifer R. Lamb and Nicholas Ramessar, Carscallen LLP

for L & K Tire Inc: