Sons Take $250,000 from Accounts Days Before their Father Dies: PART II

Sons Take $250,000 from Accounts Days Before their Father Dies: PART I

In Wade v. Wade, 2021 ABQB 994, two sons Duane and Darren had removed roughly $250,000 from their father’s accounts days before he died via a freshly appointed power of attorney. They were ordered by the Court to return the funds, but they stated they could not return the funds, because the monies were spent. After they did not comply with the order the Court on application considered whether they should be held in contempt of Court.

The Applicable Law

The Court at paragraph 36 outlined the applicable law within the Alberta Rules of Courtas follows: 

10.52(3) A judge may declare a person to be in civil contempt of Court if

(a) the person, without reasonable excuse,

(i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge ….

There are four elements to a finding of contempt [Law Society of Alberta v Beaver, 2020 ABQB 321 at paras 4 and 5 (contempt finding upheld 2021 ABCA 163 (paras 31-51)]:

(a) the order clearly and unequivocally states what should or should not be done;

(b) there is actual knowledge of the order;

(c) the breach is deliberate; and

(d) there is no adequate excuse for the breach.

Findings of the Court

The Court found the sons’ failure to repay the monies amounted to contempt upon consideration of the four elements.

The Honourable Justice Lema found the Order was unambiguous. The Order required the sons to pay into a trust the monies they had removed. It was not circumscribed by words “if you hold them” or “if they can be traced.”

Further, Justice Lema found their breach of the Order was deliberate. They intentionally did not repay the monies, and this act was a deliberate breach.

Justice Lema found the sons did not have a reasonable excuse for their failure to repay the monies. They used the money to purchase cars, and they both earned real property. These assets could be sold or charged to raise monies to comply with the order.

Thus, the sons were found to be in contempt of Court. Interestingly, Justice Lema commented that they may be entitled to those funds. However, the funds needed to be accounted for on a preserve-rights basis, so that entitlement to those funds could be determined at a later date.

This case provides an example of an option available when parties do not return money as ordered. If you have any questions regarding funds taken from accounts of a deceased, contact one of the estate litigation lawyers at Kantor LLP. We are happy to answer any questions.

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Case Summaries