Chaim David Freedman

The applicant, as estate trustee, sought to remove a co-trustee and recover approximately $689,000 in transfers made by the deceased to the respondents during her lifetime, claiming the transfers were subject to resulting trusts.

The respondents moved for a declaration that the claims were statute-barred under the Limitations Act, 2002.

The court determined that the applicable limitation period was the two-year period under the Limitations Act, 2002, not the two-year period under section 38 of the Trustee Act.

The court held that the cause of action arose during the deceased's lifetime when the transfers occurred, and therefore the Limitations Act, 2002 applied.

Since the applications were commenced more than two years after the last impugned transaction, the court dismissed the applications as statute-barred.

The deceased was subject to court orders requiring him to pay spousal and child support and to maintain his wife as the irrevocable beneficiary of his life insurance policy.

After separation, the deceased entered into a relationship with another woman whose child was born three months after his death.

The deceased left an insolvent estate.

The other woman brought an application for dependants' relief seeking to claw back the life insurance proceeds into the estate under section 72(1)(f) of the Succession Law Reform Act.

The wife sought a declaration that the policy did not form part of the estate or that she was a creditor whose rights were protected under section 72(7) of the Act.

The trial judge and Divisional Court held the policy formed part of the estate.

The Court of Appeal allowed the appeal, holding that section 72(7) excludes from the claw back the amount of proceeds required to satisfy the deceased's court-ordered spousal and child support obligations where the support recipient was designated as the irrevocable beneficiary.

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.

This endorsement addresses the issue of costs following an unsuccessful application by the applicant to remove the respondents as estate trustees and a related motion for leave to introduce additional affidavits.

The respondents sought costs on a full indemnity basis, arguing the applicant pursued personal interests and made unfounded allegations.

The applicant argued for partial indemnity costs, denying egregious conduct and challenging the quantum.

The court, applying public policy considerations in estate litigation, found the applicant's actions undermined the testator's choice of trustees and proper estate administration.

Substantial indemnity costs were awarded to the respondents for both the application and the motion, to be paid personally by the applicant.