Sheikh's Daughter Removed As Administrator In Hotly Contested Estate Litigation - Appeal Dismissed

Al-Sabah v. Al-Sabah, 2016 BCCA 365

In 2003, Sheikh Salem Homoud Al-Jaber Al-Sabah passed away intestate and left 15 beneficiaries.  His family has since been caught up in estate litigation across several countries. 

Al-Sabah held properties in Kuwait, Gibraltar, London, and B.C.  His beneficiaries included his two sons, his two wives, and his seven daughters.  While two of his daughters did not participate in this litigation, one, Sheikha Salem Homoud Al-Jaber Al-Sabah, is the appellant in this action.  She sought to appeal an order from an application revoking the grant of letters of administration of her father’s estate (located in B.C.).  The chambers judge had found the daughter had not exercised reasonable diligence in providing notice to the beneficiaries of her intention to apply for administration of the estate in BC and she had failed to disclose relevant information. 

For background, his daughter (appellant) had obtained an order to administer her father’s estate in London, but this was later revoked.  She also commenced at least 4 unsuccessful actions in Kuwait against other beneficiaries of the estate, including an action where she sought appointment as representative of the estate in Canada.  She successfully applied for grant of administration in B.C.

It was noted the application was made amidst “hotly contested” and “acrimonious” estate litigation.

APPEAL DISMISSED

In dismissing the appeal, the court established the chambers judge found that she did not exercise reasonable diligence when ascertaining the addresses of the beneficiaries.  The appellant argued that WESA did not require personal delivery or that the applicant ensures that the notices are received.  She maintained it was reasonable for her to use the official mailing addresses on file with the Kuwait government.  The court did not agree.  The beneficiaries were close relatives, and all deposed that they did not receive the notice.  The evidence demonstrated that she had sent the notices to incorrect addresses and all of the respondents deposed that they did not receive the notices.  There had been an evidentiary basis for the chambers judge’s findings that she did not comply with the notice provisions of WESA and there was no basis to interfere with the decision. 

On the question of whether the judge erred in finding that the appellant failed to disclose relevant information, the appellant took the position that neither WESA nor the common law require such disclosure.  They submitted none of WESA’s provisions outlining when and how an administrator can be removed discuss removing an administrator for a failure to disclose. 

The court disagreed and reiterated that an ex parte application requires full and frank disclosure and the judge had an evidentiary basis for finding that she failed to disclose relevant information in bringing the application for grant of administration.

An ex parte application requires full and frank disclosure and the judge had an evidentiary basis for finding that she failed to disclose relevant information in bringing the application for grant of administration.  The appellant did not reveal that she had previously been refused administration duties by a court in Kuwait for the same property.  Additionally, she did not inform that her appointment as executrix in the UK had been revoked by the court. 

Issue 1: did the judge err in finding the appellant did not comply with WESA's notice provisions?

8      The appellant submits that the judge erred in law in finding she did not provide the notice WESA requires. WESA does not require that an applicant deliver notice by personal delivery or that the applicant ensures that the notices are received. Rule 25-1Supreme Court Civil Rules defines "deliver" as to provide to the person by ordinary mail to the person's residential or postal address. The appellant deposed that she used the official mailing addresses on file with the Kuwaiti government, which were correct to the best of her knowledge. Therefore, she argues it was an error to find that she was not duly diligent.

9      The respondents submit there was evidence with which the chambers judge could find that the appellant had not delivered notice as required: the evidence demonstrated that the appellant sent the notices to incorrect addresses and all of the respondents deposed that they did not receive the notices. Also, the judge found that with some diligence, the appellant could have ensured the correct addresses were used.

10      The judge found that the appellant did not exercise reasonable diligence when ascertaining the addresses of the beneficiaries. The beneficiaries were close relatives, and all deposed that they did not receive the notice. There was an evidentiary foundation for the judge to reach his conclusion and there is no basis to interfere with his decision. See Desbiens v. Smith Estate, 2010 BCCA 394 (B.C. C.A.).

Issue 2: did the judge err in finding that the appellant failed to disclose relevant information?

11      The appellant submits that the judge erred in law in finding that she failed to disclose relevant information in bringing her application for a grant of administration, as neither WESA nor the common law require such disclosure. None of WESA's provisions outlining when and how an administrator can be removed discuss removing an administrator for a failure to disclose. The judge simply relied on "equities" to revoke the grant of administration.

12      The respondents submit that when bringing an ex-parte application, an applicant must disclose all relevant and pertinent material to the court. Furthermore, in considering the welfare of the beneficiaries as a factor in deciding whether to revoke the grant of administration, the chambers judge was entitled to consider that the appellant did not disclose relevant information.

13      The appellant did not reveal that she had previously been refused administration duties by a court in Kuwait for the same property. Additionally, she did not inform the court that her appointment as executrix in the United Kingdom had been revoked by the court.

14      An ex parte application requires full and frank disclosure. The judge had an evidentiary basis for his conclusions, and I would not interfere with his decision on this basis.

15      During argument, another issue arose that requires some comment. The appellant sought a stay in this Court of the order appointing her brothers and sisters as representatives, and she was refused. The asset of the estate in British Columbia was a piece of property (the appellant says two pieces of property). The appellant supported litigation concerning the two pieces of property, and claimed that both properties belonged within the estate. That litigation was settled after the order was appealed, with the litigants agreeing that the estate had an 80% interest in one property and no interest in the other. The property in which the estate was agreed to have an 80% interest was sold by the representatives and the money disbursed to the beneficiaries, save funds for Canada Revenue Agency and some for outstanding lawyer's fees. The litigation was settled by a consent dismissal. In other words, there is very little left to administer. Even if the appeal was allowed and the appellant was reinstated, no realistic benefit could accrue to the appellant. In my view, the steps taken in furtherance of the order under appeal has eliminated the possibility that we could make an order that would have a practical and direct effect upon the estate. For that reason, too, I would dismiss the appeal.

16      The appellant says that her re-appointment as administrator, effectively reverting to the pre-order status quo would allow her to challenge the settlement of litigation or to claim against the current administrators by using the estate's funds, rather than using her own resources. In my view this consequence is indirect and collateral and does not cure the appeal's lack of practical effect upon the estate.

17      In all of the circumstances, I would dismiss the appeal.