A Power of Attorney Must Act in Good Faith

The case, Robillard v. Robillard Estate, 2015 BCSC 1417, highlights the responsibilities of a power of attorney, and the potential for a dishonest person to abuse that role.

Marc Robillard took it upon himself to care for his elderly mother, who suffered from Alzheimer’s, for several years before and after she entered a care home. He also had an enduring power of attorney prepared with a notary. Marc had one sibling who was also a beneficiary of their mother’s will, Suzanne, who lived in Mexico.

During the time his mother was in care, Marc withdrew a total of more than $90,000 from her account. He claimed this was for various expenses of his mother’s, as well as the cost of maintaining and operating his vehicle. Marc did not keep records or receipts of these expenditures.

After his mother died, Marc did not inform the bank of her death for some 12 months. During that time he withdrew more than $150,000 from her account. Eventually the bank insisted that Marc obtain a grant of probate. He was required to tell his sister about the application for probate, but he did not do this. The court granted probate and named Marc as executor.

In his application for probate, Marc stated that the gross value of the estate was $194,129. This included the $150,000 he had taken out, but not the other sums he’d withdrawn over the years. He then wrote to his sister to tell her that her share of the estate came to $29,704, in accordance with the will, but he did not provide her with a copy of the will. In any event, the will divided the estate equally between the siblings. Suzanne told Marc that she expected the will to be equally divided and asked him to account for the total value of the estate.

Marc challenged the will under the Wills Variation Act. Suzanne counterclaimed for an accounting of the money Marc had withdrawn from the mother’s account, and for an equal division of the estate as the will specified. The law under the Power of Attorney Act and the Power of Attorney Regulation requires a person acting as power of attorney to act in good faith, to keep their property separate from that of the person who made the power of attorney, and to maintain records. It also terminates an enduring power of attorney upon the death of the person who made it.

The court found Marc’s testimony regarding the way he handled his mother’s money, and why he first did not communicate with Suzanne and then later tried to tell her that $29,704 was her share of the estate “as set out in the will” showed dishonesty. The court found Marc unentitled to contest the will on the basis of a moral obligation. The deceased owed no legal obligation to either of her children, as they were both financially independent, and she discharged her moral obligation to them through the equal division of her estate. Marc showed devotion to his mother in her later years, but this arose out of his own choices rather than her need. The court calculated the total value of the estate and ordered that Suzanne was entitled to one half the total. Marc was also required to pay the estate back for the money he had taken out, plus interest.