Wills, Estates, Trusts Law

The Court of Appeal for Ontario dismissed the appeal of Kyrle Blake Farmer, who had served as estate trustee and attorney for property for his aunt, Billie Frances Farmer.

The respondents, his brothers, challenged his distributions and expenses.

The application judge found that Billie lacked capacity to provide instructions, that the appellant’s compensation and expenses were not justified, and that he failed to keep proper accounts.

The appellant was ordered to repay significant sums to the estate.

The Court of Appeal found no error in the application judge’s findings or orders and dismissed the appeal with costs.

The appellant appealed the dismissal of his application to declare his late father's 2019 will invalid due to undue influence.

The application judge found the appellant lacked standing under the Rules of Civil Procedure and the Estates Act, as an earlier 1996 will (under which he was not a beneficiary) would take effect if the 2019 will was set aside.

The Court of Appeal upheld this decision, finding no error in the application judge's reasoning regarding standing and the onus on the appellant to adduce evidence challenging the 1996 will's validity.

The appeal was dismissed with costs awarded to the respondents.

Mary Zammit sought a stay of a lower court order that declared her incapable of managing her property, terminated a power of attorney in favour of her daughter Patricia Zammit, and appointed the Public Guardian and Trustee (PGT) as her property guardian.

The Court of Appeal, applying the three-part test for a stay from RJR-MacDonald Inc. v. Canada (Attorney General) and the gloss from Ogden Entertainment Services v. United Steelworkers of America, Local 440, found that the moving party failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured granting the stay.

The court noted the thoroughness of the motion judge's reasons, which included findings of Mary Zammit's incapacity and Patricia Zammit's breaches of fiduciary duty.

The motion for a stay was dismissed.

The appellant appealed the dismissal of her motion for retroactive child support payments against her deceased ex-husband's estate.

The original 1978 Decree Nisi did not state that the child support obligation would bind the estate.

The motion judge ruled that under s. 17 of the Divorce Act, an application to claim or vary a support order against a decedent's estate cannot be brought if the original order is silent on binding the estate.

The Court of Appeal upheld this decision, confirming that a support obligation under divorce legislation ends upon the payor's death unless specifically agreed otherwise, and that the Divorce Act lacks a provision similar to the Family Law Act that binds an estate.

The moving party sought to quash an appeal by the responding party, Henia Gefen, on the grounds that it was out of time.

The Court of Appeal dismissed the motion, finding that the appeal was not out of time because the time for appeal began to run from the date the judgment was finally settled and issued (October 16, 2020), rather than the date reasons were released (October 17, 2019).

This exception applied because the judgment was uncertain on a substantive point (paragraph 5, identifying deceased's assets) which was not part of the initial summary of disposition.

The court also noted that an extension of time would have been granted in the interests of justice due to factual connection between appeals and no prejudice to the moving party.

The defendants moved for summary judgment to dismiss the plaintiff's trust claim regarding a 46.5-acre property.

The plaintiff alleged that the property, initially transferred to her minor daughter and later sold in two parts to the defendants' father, was held in trust for her.

The court found no genuine issue for trial, noting the plaintiff's lack of detailed supporting evidence, inconsistencies in her claims, and contradiction by documentary evidence and the third party's (the daughter's) testimony.

The court dismissed the plaintiff's claim, concluding that the defendants' narrative, supported by independent documentation and consistent evidence, was credible.

The defendant, Rakhi Kalia, brought a motion to dismiss an action commenced by her mother, Adarsh Kalia, alleging the plaintiff's lawyer lacked authority and had a conflict of interest.

Adarsh Kalia, through her litigation guardian, cross-moved for a timetable and case management.

The court found the lawyer was properly authorized, initially by a power of attorney and subsequently by the Public Guardian and Trustee.

The court dismissed Rakhi's motion (except for granting leave to amend her Statement of Defence) and granted Adarsh Kalia's cross-motion, ordering a case conference to establish a timetable for the action.

An appeal from a Superior Court order striking out a notice of objection to the passing of accounts in the estate of Lidia Iaboni.

The appellant, Carlo Iaboni, objected to the respondents' administration of his parents' estates on grounds of alleged misappropriation of funds.

The motions judge struck the notice of objection on three bases: lack of merit, abuse of process (attempting to relitigate a dismissed action), and being time-barred under the Limitations Act.

The Court of Appeal dismissed the appeal, finding no error by the motions judge and noting that the appellant's factual allegations were not substantiated.

The appellant, widow of a deceased party to a right of first refusal agreement, sought to exercise the right to purchase property on the same terms as an offer made to a third party.

The motion judge found that the right of first refusal was limited to the original parties to the agreement and did not extend to family members.

The appellant failed to establish her authority to act on behalf of the deceased's estate and based her claim on her status as a family member.

The Court of Appeal upheld the motion judge's decision, finding no ambiguity in the agreement and no legal error in the interpretation.

The appellants appealed from a motion judge's order regarding control of a religious organization's premises.

The motion judge had declared a November 16, 2013 meeting of Torah V'Avodah Congregation invalid and set aside resolutions to remove trustees and close membership, finding that proper notice had not been given.

The Court of Appeal allowed the appeal, finding that the motion judge erred by not ordering the entire application to proceed to trial.

The court determined that fundamental questions regarding membership and trustee status should be resolved at trial before determining the validity of the meeting and resolutions.

The court set aside the motion judge's declarations but preserved the interim arrangement maintaining the status quo with the original trustees in office pending trial.

The appellant, a grandchild of the deceased, appealed the dismissal of her application to remove the named executors and trustees of the deceased's estate.

The executors were the deceased's two sons.

The appellant claimed the executors would not treat her fairly and had breached their fiduciary duties.

The Court of Appeal dismissed the appeal, finding no evidence supporting the appellant's claims.

The court noted that the key property at issue had been sold, the executors had honored the deceased's non-binding request regarding the cottage, and the mere existence of friction between the executors and the appellant's mother did not justify removal.

The deceased was aware of existing tensions but nonetheless named the respondents as executors.

An appeal from a Superior Court judgment concerning the interpretation and enforcement of a testator's will.

The deceased's will permitted his common law spouse to remain in his home on the condition that only she and two tenants occupy the residence.

The lower court found that the spouse breached the will's terms by allowing her family to live at the property, terminated her right to remain, and removed the co-estate trustee for conflict of interest.

The appellate court upheld the lower court's decision, finding no factual or legal error and dismissing the appeal with costs awarded to the respondent.

The plaintiff, Phillip Owen, withdrew his claim against the Estate of Barbara Owen and consented to judgment on the counterclaim.

This endorsement addresses the issue of costs.

The defendants, including the Litigation Guardian and the Estate Trustee, sought full indemnity costs due to the plaintiff's vexatious conduct, including fraud and non-compliance with court orders.

The court found the defendants successful and awarded full indemnity costs, albeit reduced from the amounts claimed, to both the Litigation Guardian ($60,500) and the Estate Trustee ($30,000), payable by the plaintiff.

The applicants challenged the Last Will and Testament of the deceased, alleging lack of testamentary capacity and undue influence by the respondent.

The court found that the applicants failed to discharge their onus of proving undue influence and that the deceased possessed the requisite capacity to make his will.

The court upheld the August 23, 2013 Will as valid, reflecting the testator's intentions to keep the farm lands in the family and ensure fairness to all children.

In an estate dispute concerning alleged breach of fiduciary duty by an attorney for property, the estate trustee moved to strike the defendant’s statement of defence and counterclaim due to failure to satisfy undertakings given on discovery.

The court held that although the motion was brought outside the timetable set at a trial management conference, the obligation to satisfy undertakings continues and the motion could still be heard.

However, striking pleadings is a drastic remedy reserved for cases of blatant disregard for court orders, which was not established on the facts.

The court instead ordered the defendant to comply with numerous outstanding undertakings, including production of banking and brokerage records and clarification of pleadings.

No costs were awarded.

Costs were determined following a contested passing of accounts in two related estates.

The estate trustee sought reimbursement of most of his legal costs from the objector, arguing that her lack of cooperation caused the litigation.

The objector sought costs against the estate trustee personally and opposed the trustee recovering costs from the estates.

The court held that modern estate litigation applies ordinary costs principles and found the trustee had been unsuccessful on the principal issues and had unnecessarily retained a second law firm to prepare accounts.

Costs for both parties were fixed at $13,500, with portions payable personally by the trustee and the remainder apportioned between the two estates.

The plaintiff brought a motion to set aside an administrative dismissal of an action.

The court considered the established factors for setting aside such dismissals, including explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendants.

While the court accepted that these four factors generally favoured the plaintiff, it considered the additional factor of the merits of the action where the evidence was clear and unchallenged.

The court found that a previously executed full and final release barred the plaintiff’s claims against the defendants relating to an earlier action and a prior court order.

As a result, the claim lacked merit and the administrative dismissal would not be set aside.

In an estate dispute between brothers arising from a contested passing of accounts, the estate trustee moved under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement based on the beneficiary’s offer to settle.

The court considered whether the offer remained open for acceptance and whether enforcement would create an injustice.

It held that the hearing of the application had not commenced on earlier procedural attendances and that the offer, which had not been withdrawn in writing, remained open when accepted.

Applying contract principles and appellate guidance on enforcing settlements, the court found the offer clear and unequivocal and rejected arguments that a mistaken assumption about its expiry or incomplete disclosure justified non‑enforcement.

The court concluded there was a binding settlement and granted judgment enforcing the accepted offer.

A contested passing of accounts involving a guardian of property appointed to manage the finances of an incapacitated parent.

The applicant challenged substantial cash withdrawals and legal expenses claimed by the guardian.

The court found the accounts wholly inadequate and concluded that the guardian had improperly withdrawn more than $120,000 from the estate and failed to maintain proper records or explanations.

The court rejected post‑hearing attempts to introduce new evidence and denied the guardian any compensation.

The guardian was ordered to repay the improperly withdrawn funds and personally pay the applicant’s costs.

Following an earlier order approving the sale of a significant estate asset and directing production of estate documents, the court determined competing claims for costs in estate litigation.

A beneficiary and former co-trustee sought full indemnity costs payable from the estate after supporting the estate trustee during litigation in obtaining approval of the property sale and production of estate records.

The court held that although estate litigation does not routinely justify costs payable from the estate, the beneficiary’s participation was helpful to the administration of the estate and contributed to a successful outcome benefiting all beneficiaries.

Full indemnity costs were awarded to the beneficiary from the estate.

A former co-trustee who resisted document production and failed to cooperate in the sale process was denied costs and ordered to bear his own legal expenses.