Jennifer Brun, K.C. and Kirsti Jamison achieved an excellent result for the firm’s client in this Estate Law appeal: Barbieri v. White, 2025 BCCA 253.

Jennifer was retained by the respondent, Ms. White, to defend an appeal brought by Mr. Barbieri, who had been removed as executor of his mother’s estate as a result of the chambers judge’s decision in Barbieri Estate v. White, 2024 BCSC 1357.

The chambers judge found:

1. The appellant had clearly favoured certain beneficiaries over others, namely himself and Steven Barbieri over Ms. White. As such, his conduct cannot be said to be in the best interests of all the beneficiaries: para. 72.
2. The appellant’s actions had imperiled estate assets, as he appeared to be guided by his interpretation of the deceased’s wishes plus his animus towards Ms. White. There was therefore “at least a moderate risk to the remaining assets” if he remained as executor: paras. 73–75.
3. There had been no independent third-party accounting done to satisfy the court that there were sufficient assets in the estate to make all three beneficiaries whole. The accounting had been done by the appellant’s staff and was “obviously biased”. Based on at least one appraisal obtained by Ms. White, there was a possibility the appellant had already received more than one-third of the value of the estate: para. 76.

The appellant argued that the chambers judge erred in:

1. Finding that the appellant’s transfer of the Old Yale Property to his company was a purchase, not an in specie distribution, when the latter had been admitted by the respondent and was not disputed;
2. If the appellant succeeds on ground one, finding that it was necessary to remove the appellant as executor, as the appellant submits there was no necessity if his transfer of the Old Yale Property to his company was an in specie distribution; and
3. Appointing an administrator pending litigation when the statutory requirements were not met.

Jennifer successfully argued that there had been no admission of an in specie distribution by the respondent in the lower court, and that the judge was procedurally fair in addressing the question of whether the transfers executed by the appellant were purchases or in specie distributions. Justice Griffin for the unanimous court said, at para. 67:

[67]      Ms. White did not concede that the characterization of the transfer of the Old Yale Property as a distribution of the estate was not in issue. The appellant had notice by way of the notice of application that Ms. White described it as a sale. Ms. White did not state that she ever withdrew from that position. She cited legal authorities dealing with a trustee improperly purchasing trust property. She did not unequivocally make a concession that it was not a self-dealing purchase; rather, she continued to insist that it was a self-dealing purchase. I therefore cannot conclude that the judge was procedurally unfair in addressing the question of whether the transfer was a purchase or an in specie distribution.

The appellant having failed on the first argument, the court did not need to pronounce on the second. Respecting the proper scope of the appointment of the administrator, as Jennifer suggested should be the case at the hearing, that matter has been remitted to the trial court to address.