Appointing a personal representative is one of the first substantive things addressed in a Will and one of the key choices a person can make with respect to their estate plan. When a person dies without a will, someone must apply to the Court to obtain legal authority to administer the deceased’s Estate. In Alberta, the Estate Administration Act sets out a list of classes¹ of people who can make that application, in descending order of priority. Spouses rank at the top of that list and the provincial government at the bottom.

The Alberta Court of Appeal recently considered those statutory priorities in Egal v Shafat, 2020 ABCA 50. The Court confirmed that, while the statutory priorities exist and should be given effect, the Court has a broad discretion to deviate from that list in appropriate circumstances. This brief decision from the Court of Appeal is powerful authority for anyone who is looking to appoint a personal representative outside of the set priority list.

Background

Although the facts are not extensive, this case appears to arise from the tragic 2019 Ethiopian Airlines Boeing 737 Max crash in April 2019. The deceased and one of her daughters sadly perished in the accident.

A limited Grant of Administration was issued to F, the father of three children with the deceased (two of whom survived, the other of whom was a victim of the crash) after what appears to have been an application in morning Chambers. F and the deceased were not legally married and were living separately at the time of her death. The grant was limited to allowing F to pursue a claim against Boeing in Chicago on behalf of the deceased’s estate. He had already been appointed as a personal representative of his daughter’s estate and was already proceeding with the litigation in the US on her estate’s behalf.

The deceased’s mother, and grandmother to the daughters, appealed the decision. She sought to be appointed as the administrator of the deceased’s estate because she argued she had priority and because F did not fall into one of the categories of persons entitled to apply.

The Chambers judge exercised her discretion and appointed F as the limited administrator after taking into account that:

• F had interim custody of the remaining children

• The remaining children were beneficiaries of the deceased’s estate

• Proceeds of litigation would flow to the surviving children, and

• Litigation efficiency would be realized since F was already representing the daughter’s estate and had retained US counsel to pursue that claim.

The priorities aren’t everything

Section 13(1) of the Estate Administration Act states that, in an application for a grant priority should be given to an applicant according to the list, “unless the Court orders otherwise.” It was not disputed that the legislation gives the Court the discretion to deviate from the priority regime.

The Court of Appeal confirmed that F had standing under section 13(1)(b)(ix) as a person who had a relationship with the deceased, and was thus entitled to apply. The Court also acknowledged that the grandmother ranked higher in priority to F.

However, the Chambers judge’s discretionary decision was entitled significant deference and the Court dismissed the appeal, finding no reviewable error. The Court noted that section 15(1) of the Estate Administration Act arguably conferred an even broader discretion to overlook the statutory priorities, though it did not need to consider that particular provision to dispose of the appeal.

Takeaway

In the vast majority of the cases where a person has died without a will, the Court will give effect to the statutory priority scheme. However, the Court has a broad discretion to deviate from the statutory priority scheme to appoint an appropriate administrator. In exercising its discretion, the Court will always be guided by the best interests of the beneficiaries. If you have any questions about appointing administrators, feel free to email or call me about your specific circumstances.

Thank you for reading,

¹ The priority list set out at section 13(1)(b) of the Estate Administration Act, in descending order is:

1. surviving spouse or adult interdependent partner;
2. child of the deceased person;
3. grandchild of the deceased person;
4. descendant of the deceased person other than a child or grandchild;
5. parent of the deceased person;
6. brother or sister of the deceased person;
7. child of the deceased person’s brother or sister if the child is a beneficiary under the intestacy;
8. next of kin of the deceased person determined in accordance with sections 67 and 68 of the Wills and Succession Act who are beneficiaries under the intestacy and who are not otherwise referred to in this clause;
9. a person who has an interest in the estate because of a relationship with the deceased person;
10. a claimant;
11. the Crown in right of Alberta.