Adam Giancola

This is a costs endorsement following a successful application for interim guardianship of property for an incapable adult.

The applicant, Brenda Myers, sought full indemnity costs, while the responding party, Tereasa Muscedere (the incapable adult's mother), opposed the costs award, claiming impecuniosity and excessive costs.

The court found Tereasa's opposition to the guardianship application unreasonable and ordered her to pay partial indemnity costs to Brenda Myers and s. 3 counsel for the incapable adult.

The balance of Brenda Myers' and s. 3 counsel's costs, and the Public Guardian and Trustee's full indemnity costs, were ordered to be paid from the incapable adult's property, with a portion of the PGT's costs adjourned to the passing of accounts.

The Bank of Nova Scotia Trust Company, as Estate Trustee, sought court advice on interpreting a 1957 will establishing a charitable remainder trust.

The will's language was unclear regarding income beneficiaries among the Testator's grandchildren and the trust's administration.

The court determined that only Betty Burnett and Kathryn Baker were entitled to income, not Rosalie Anita Grimes or Robert Alan Jackson, due to specific conditions in the will regarding the number of children of the Testator's son.

The court also confirmed the trust's perpetual charitable nature, ruling against any wind-up or variation for the benefit of descendants without the Public Guardian and Trustee's consent, which was not given.

The applicant, Stoja Sekulovski, sought dependant's support from the estate of her late husband, Jim Sekulovski, under the Succession Law Reform Act.

She also sought an order for her step-son, Michael Sekulovski, to return funds he received from Jim's mother's estate, asserting it was an invalid gift, and to discharge Personal Property Security Act (PPSA) registrations he made against the estate and Stoja, along with statutory and punitive damages.

The court found the purported gift to Michael invalid, granted Stoja dependant's support including vesting the matrimonial home in her, and ordered Michael to discharge the PPSA registrations, pay the statutory amount, and punitive damages for his vexatious conduct.

The respondents brought a motion to enforce a settlement agreement against the applicant, who had initially sought an interest in a property held by a family trust.

The applicant argued that no binding agreement was reached due to a lack of agreement on the specific terms of a mutual release, which he considered an essential term, and that he entered the agreement under duress.

The court applied contract law principles and Rule 49.09, finding that a mutual intention to settle existed and all essential terms were agreed upon.

It held that the specific wording of a release is not a material term unless explicitly made conditional, and rejected the duress claim due to a lack of credible evidence.

The settlement was enforced, and the applicant's original application was dismissed.