Wills and Estates - Case Study
Case Name: Cichy (Committee of) v. Cichy
Between
Diane Marlene Bernes and Doreen Marilyn Coulson in
their capacity of Co-Committees of the person and
Estate of Tillie Cichy, plaintiffs, and
David Bernard Cichy, defendant
[2002] B.C.J. No. 976
2002 BCSC 625
Nanaimo Registry No. S28464
British Columbia Supreme Court
Nanaimo, British Columbia
Lander J.
Heard: March 21, 2002.
Judgment: April 26, 2002.
(16 paras.)
Trusts — Creation of trust — Intention — Trust v. absolute gift.
Trial pursuant to Rule 18A of an action by Diane Bernes and Doreen Coulson in their capacity as Co-Committee of the person and Estate of their mother, Tillie Cichy; and for a declaration that the defendant, David Cichy, their brother, held certain monies in trust for Tillie's benefit. Tillie's husband died making Tillie the primary beneficiary of his estate. She received title to the family home and $20,000 in cash. The $20,000 was given to David in 1982 and was placed in a bank account for which he provided Tillie with a power of attorney. In 1996, Tillie sold the home and the $70,000 in net proceeds was transferred to David. David argued that Tillie had gifted him the money from the house and that he was not morally obligated to share the monies with his sisters. He denied that he maintained the account on behalf of Tillie and stated that he gave her power of attorney on the account because he wanted her to use it if and when she needed. In 1998, David gave the three sisters each $9,500 and he retained $9,500.
HELD: Application granted and the requested orders were made, declaring that the monies received by David were not a gift and were held in trust for the benefit of Tillie. The references to excerpts of the examination for discovery of David revealed that his answers were evasive, incomprehensible and generally of no evidentiary value. On the balance of probabilities, it was established that David had received the monies, which were the property of his mother, Tillie, and those monies were impressed with a trust in favour of Tillie.
Statutes, Regulations and Rules Cited:
British Columbia Rules of Court, Rule 18A.
Counsel:
W. Kosteckyj, for the plaintiffs.
B. Soloway, for the defendant.
1. LANDER J.:— This matter came before the court as an 18A summary trial. The defendant took the position that this matter was not one that could be properly determined by means of affidavit evidence, however, after submissions I decided that this matter was one that could be properly determined by way of Rule 18A.
2. The plaintiffs, Diane Marlene Bernes and Doreen Marilyn Coulson, and the defendant, David Bernard Cichy are the children of Tillie Cichy. The plaintiff co-committees were appointed by this court on December 17, 1998.
3. Tillie Cichy's huband, Bernard Frank Cichy, died on September 17, 1977. Mrs. Cichy, was the primary beneficiary of his estate. She received title to the family home at Port Alberni and approximately $20,000 in cash.
4. The $20,000 was given to the defendant in 1982 and was placed in a bank account for which the defendant provided Mrs. Cichy with a power of attorney over the account.
5. In February, 1996, Mrs. Cichy sold the home in Port Alberni and received approximately $70,000 as the proceeds of that sale. One year later, she transferred approximately $70,000 to the defendant.
6. The plaintiffs seek the following relief:
1. A declaration by this court that all monies and personal property transferred to the defendant by the plaintiff between 1977 and the time the appointment of the plaintiffs as co-committees are not a gift and are held in trust for the benefit of the plaintiff;
2. An order requiring the defendant to account for all monies and personal property transferred by the plaintiff to the defendant between 1977 and time of the appointment of the plaintiffs as co-committees of the Estate of Tillie Cichy;
3. An order for an accounting of any other accounts, any inquiries and/or directions and/or other relief as may be necessary to fully account for all the aforementioned monies and personal property.
7. The plaintiffs have set forth a comprehensive history of the financial affairs of their mother as best they are aware and in particular attached to their affidavit is the will of Tillie Cichy executed on the 28th day of September, 1995, drawn and executed according to the Wills Act on that date. Also executed on that date was a document and is addressed "to whom it may concern." It states as follows:
I, Tillie Cichy, hereby declare that approximately twenty years ago I gave $100,000 to my son, Bernard David Cichy, to invest for me. This was never intended to be a gift for my son, David Bernard Cichy, but to invest and keep invested as my power of attorney and to return to my estate for distribution upon my death. My son, David Bernard Cichy, has advised me as to investments made in his name on my behalf from time to time.
8. It was signed and witnessed by the solicitor, whom I assume, drew the will and a secretary employed in that firm.
9. Prior to April, 1998, the plaintiffs retained legal counsel who wrote to the defendant personally. The defendant then retained a respected barrister and solicitor in the City of Nanaimo who replied in part to the assertions of the plaintiff's counsel as follows:
The only other capital sum, which Ms. Cichy has received, were the proceeds from the sale of her home. These proceeds amounted to $69,930.07. Mr. Cichy has invested the proceeds from the sale of the residence for his mother. He holds those investments in his name in trust for her. We enclose an accounting of those funds. You will note that the current balance is $69,760.95. Of this sum 442,130.00 is invested in stocks, $2,124.61 is in cash and $25,506.34 is in a bank account. (underlining mine)
10. The defendant deals with the solicitor's letter in his affidavit sworn November 29, 2000, as follows:
30.In response to paragraph 33, and in particular response to Exhibit "H", I had provided instructions to my then counsel, Mr. Giovando to draft a response to a letter received from counsel for the Petitioners. I was to review the draft of the letter before it was sent. However, the letter was sent without my approval, and contained several factual errors. As a result, I terminated Mr. Giovando's retainer. The most significant error is contained in the last paragraph when he indicates that I received $20,000.00 from the estate of my father on behalf of my mother. I did not receive any funds from my mother until 1982.
11. In the same affidavit the defendant states:
39. ...my mother gifted me the proceeds from the sale of her house in February 1997. As this money was now mine I could do whatever I chose to do with it. I chose to use this money for my mother's care and miscellaneous expenses incurred by her. I was not morally obligated to share these monies with my three sisters, but I did. My mother signed a power of attorney for Shirley and myself on January 28, 1998, almost a full year after she gave me the proceeds from the sale of her house. If at that time my mother believed I stole monies from her, I doubt she would sign a power of attorney for Shirley and myself on January 29, 1998 as she was under absolutely no pressure to do so.
45. In response to paragraph 61, I deny that I maintained an account for my mother. I have stated I gave my mother a power of attorney on my account at the Royal. As this was my gift to my mother from me I wanted her to use this account if and when she needed it and in case anything ever happened to me.
12. On June 26, 1998, the defendant wrote his sisters, Diane, Donna and Shirley, as follows (Exhibit "F"):
Further to my earlier request for your ideas on what to do with mothers house money and because I don't want the responsibility and more. I enclose Bank Drafts to you each for 1/4 of the remainder of these monies. There is just a little left in her account.
In the likely event she may need some future monies, I would hope that each of us could share the load in providing for her.
13. The three sisters received $9,500 and Mr. Cichy retained $9,500. Diane Bernes co-committee deposes in her affidavit filed August 3, 2000 as follows:
At the same time that the Respondent provided the form of accounting which is marked as Exhibit "I" to this our Affidavit, he sent to each of us and our sister, Shirley Malkin, a cheque in the amount of $9,500.00 which he stated represented the balance of monies he had been holding on our mother's behalf. We immediately endorsed the cheques to our solicitor to hold in trust pending the outcome of our application to be appointed as the Committee for our mother. The Respondent kept $9,500.00.
14. On August 24, 2001, the plaintiffs' then counsel examined the defendant on discovery. During the submissions before this court, counsel for the plaintiffs referred to portions of the discovery which portions I do not propose to produce in this judgment however it is suffice to say that the defendant's responses were evasive, in-comprehensible and generally of no evidentiary value.
15. I am satisfied on the balance of probabilities that the defendant has received monies, the property of his mother, Tillie Cichy, and those monies are impressed with a trust in favour of Tillie Cichy.
16. An order will go in the form as set forth as above. There will be costs on Scale 3. The plaintiffs have sought general damages and punitive damages and court order interest. Those matters will be adjourned to be spoken to if necessary.
LANDER J.
QL Update: 20020510
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