VANCOUVER – The British Columbia Court of Appeal has upheld the removal of an executor who transferred a valuable property from his late mother’s multimillion dollar estate to a company he controlled, finding his actions constituted “impermissible self-dealing.” The court dismissed1 the executor’s main argument that the judge who removed him was procedurally unfair, though it sent a secondary, technical issue regarding the new administrator’s role back to the lower court for reconsideration.
To read our news report regarding the original case that gave rise to this appeal, click here.
The lengthy legal battle involves the estate of Lily Diane Barbieri, who died on November 7, 2018, leaving behind three adult children: Ricardo “Rick” Barbieri, Teresa White, and Steven Barbieri. Her will stipulated that the residue of her estate, estimated to be worth over $5 million at the time of probate, was to be divided equally among the three siblings. The will also appointed Rick and Teresa as joint executors and granted the executor broad powers to manage, convert, and allocate estate assets.
The relationship between the siblings soured shortly after their mother’s death. Rick Barbieri raised objections to certain actions taken by his sister, Teresa White, including her transfer of a property she had held jointly with their mother into her name alone. The conflict escalated, leading Rick to file an application to have Teresa removed as executor. In a consent order dated September 10, 2019, Teresa agreed to step down, leaving Rick as the sole executor of the estate. The order also carried a significant condition: Rick was required to provide his siblings with a detailed estate accounting every two months.
With sole control over the estate, Rick Barbieri proceeded with two major property transactions without informing his sister. In February 2020, he incorporated a numbered company of which he was the sole director and transferred a key estate asset, known as the “Old Yale Property,” to this new company. The transfer documents indicated a value of $1,293,500. More than a year later, in March 2021, he transferred another property, the “240 Street Property,” to his brother Steven for a price of $2,118,000, again without giving notice to Teresa.
These actions became the focal point of intense and multifaceted litigation. Teresa White eventually filed an application within one of the ongoing lawsuits to have Rick removed as executor, arguing that he had breached his fiduciary duties. She alleged he had engaged in self-dealing, created a conflict of interest by transferring the Old Yale Property to himself for personal gain, and demonstrated a clear preference for himself and Steven over her, in contravention of his duty to act in the best interests of all beneficiaries.
In his defence, Rick argued that the transfers were not sales but were “in specie distributions,” meaning he was transferring assets in their existing form to partially satisfy his and his brother’s respective one-third shares of the inheritance. He contended that the will’s broad discretionary clauses gave him the authority to make such allocations and to assign values to the assets.
On July 29, 2024, Justice Tammen of the Supreme Court of British Columbia sided with Teresa White. The judge found that Rick’s conduct warranted his removal. The central finding was that the transfer of the Old Yale Property was not a distribution but a purchase, amounting to “impermissible self-dealing.” The judge pointed to Rick’s own affidavit evidence, in which he described his desire to “buy” the property and his intention to “pay a fair value” for it. The judge noted that if the transfers were legitimate interim distributions, there would have been no reason for the secrecy surrounding them. He concluded that Rick’s conduct showed a clear bias, endangered the estate’s assets, and was motivated in part by his animosity toward his sister. Justice Tammen removed Rick as executor and appointed a professional trust company, Solus Trust Company Limited, as an administrator pending litigation.
Rick Barbieri appealed this decision to the B.C. Court of Appeal, making two primary arguments. His main contention was that the trial judge’s decision was procedurally unfair. He claimed that Teresa White had admitted in her legal arguments that the property transfer was an in specie distribution, meaning this fact was not in dispute. Therefore, he argued, the judge erred by basing the removal order on the finding that it was a purchase. His second, more technical argument, challenged the specific nature of the administrator’s appointment, claiming the legal requirements under section 103 of the Wills, Estates and Succession Act were not met.
Writing for a unanimous three-judge panel, Justice Griffin of the Court of Appeal firmly rejected Rick’s main argument. The court found no evidence that Teresa White had ever admitted the transfer was a distribution. To the contrary, her initial court filings described the transaction as a “sale.” Justice Griffin noted that for a legal admission to be valid, it must be a “deliberate and clear concession,” which was not the case here. In fact, the appeal court highlighted a moment during the lower court hearing when Teresa’s lawyer explicitly stated, “Teresa White does dispute the in specie part.”
The Court of Appeal also found that the trial judge’s conclusion was strongly supported by Rick’s own evidence from an earlier affidavit. In that sworn statement, Rick repeatedly referred to his “purchase” of the property and detailed how he transferred over $1.2 million to his lawyer’s trust account to facilitate the transaction. Justice Griffin reasoned that paying for the property was fundamentally inconsistent with the idea of it being a simple distribution of his inheritance. The court concluded there was no procedural unfairness, as the character of the transfer was clearly a contested issue and Rick had a full opportunity to present his case.
Even if the transfer had been a distribution, the court suggested the outcome would likely have been the same. Justice Griffin wrote that any proper interim distributions “would have necessitated notice to all beneficiaries about what was being done; proper and final valuations being assigned to the properties; and, some robust interim accounting.” Rick Barbieri, the court noted, “did none of those things, but rather effected the transfers absent Ms. White’s knowledge or consent.”
While Rick’s primary appeal was unsuccessful, the court did find merit in his second, narrow ground of appeal concerning the appointment of the new administrator. The trial judge had appointed Solus Trust as an “Administrator Pending Legal Proceedings” under a specific section of the governing legislation. The Court of Appeal agreed with Rick that the technical prerequisites for this specific type of appointment were not present in the circumstances of the case. The court noted that this issue was not adequately argued by the parties at the lower court, leaving the appellate court without sufficient reasons to review the matter fully.
As a result, the Court of Appeal allowed the appeal on this single technical point. The court’s order removing Ricardo Barbieri as executor remains in place. The case will now be remitted to the B.C. Supreme Court for the sole purpose of reconsidering and clarifying the proper scope and legal basis for the appointment of Solus Trust Company as the new administrator of the Barbieri estate.
Read more about estate law cases here.
