Daniel J. Dochylo

The appeal concerned a dispute over interpretation of a will and administration of testamentary trusts.

The appellant challenged the application judge's interpretation and sought appellate intervention on factual, legal, and discretionary grounds.

The court found no palpable and overriding error, no error of law, and no error in principle.

The appeal was dismissed.

On costs, the court directed that one trust absorb the corporate respondent's costs and the appellant's personal costs on a full indemnity basis without recoupment from the appellant personally due to an arguable ambiguity in the will.

Dispute over the calculation of a CPI-based Indexing Factor for annuity payments under a testamentary trust.

The testatrix's will established a testamentary trust providing the respondent beneficiary with an annuity, with the Indexing Factor to be determined by the trustees using the Consumer Price Index.

The respondent beneficiary challenged the trustee's CPI calculation methodology, arguing the wrong CPI chart, wrong date, and wrong calculation approach were used.

The court held that the will conferred discretion on the trustees to determine the Indexing Factor, and that determination was conclusive and binding on all beneficiaries absent bad faith.

In the alternative, the court found the trustee's calculations were correct, consistent with Statistics Canada methodology and the will's terms.

The court fixes costs in a dispute over the administration and interpretation of the John Szewczyk Testamentary Trust, specifically regarding the calculation of indexed payments to a beneficiary.

The court reviews the parties' positions, the applicable legal principles for costs in estate litigation, and the proportionality of the legal fees claimed.

Ultimately, the court orders that all parties' reasonable costs be paid from the trust, but reduces the amounts claimed by the applicant and one respondent due to concerns about excessiveness and proportionality.

The court considered the proper interpretation of annuity and indexing provisions in the John Szewczyk Testamentary Trust, specifically whether the annuity should be indexed annually or only once at inception, and whether overpayments should be repaid.

The court held that the will’s language and surrounding circumstances supported a one-time indexing at the date of death, with subsequent increases limited to $5,000 every five years.

Overpayments made prior to January 1, 2024, are not recoverable due to a prior settlement, but overpayments after that date are to be recouped by postponing the next scheduled increase.

This endorsement concerns two motions for court approval of settlements and a trust variation under Rule 7.08 of the Rules of Civil Procedure and Section 1(1) of the Variation of Trusts Act.

The primary applicant, an elderly individual under disability, sought approval of two settlements: one with his former executive assistant, Jenny Bassett, and another with his nephew, Sotheby Ketchen.

These settlements aimed to resolve disputes regarding the validity of trust amendments, the appointment of trustees, and the individual's capacity.

The court also addressed the nunc pro tunc appointment of a litigation guardian for the individual, including the issue of an out-of-province litigation guardian.

The court approved both settlements and the proposed variation of the trust, finding them to be in the best interests of the party under disability and consistent with the settlor's original intentions.

This application concerned the validity of powers of attorney (POAs) made by an 82-year-old respondent, Larry Alvin Marshall, and whether a guardian of his property and person should be appointed.

The applicants, Shawn Hollinger (Attorney for Personal Care) and MD Private Trust Company (Attorney for Property), sought to invalidate new POAs made in January 2023 that named Mr. Marshall's estranged sons, Thomas and Bryan Marshall, as attorneys.

The court found that Mr. Marshall lacked the requisite capacity to make the 2023 POAs due to significant cognitive impairment and vulnerability to undue influence.

Suspicious circumstances surrounding the preparation and execution of the 2023 POAs shifted the burden of proof to the grantees, which was not met.

Consequently, the 2023 POAs were declared invalid, and the 2022 POAs were affirmed as Mr. Marshall's last valid powers of attorney.

The defendant, Krandel, brought a motion seeking leave to issue a counterclaim *nunc pro tunc* against Dianne Herzog in her personal capacity, add her as a defendant to the counterclaim, and extend the time for service.

The original counterclaim, filed in a professional negligence action, was delivered but not properly issued or titled against Dianne Herzog personally, who was not an original party.

The limitation period for the counterclaim had expired.

The court granted the motion, finding that Dianne Herzog had actual knowledge of the counterclaim before the limitation period expired, thereby rebutting the presumption of prejudice.

The court emphasized that denying the motion would be a greater injustice and that the case was still in its early stages, making the regularization of the pleading consistent with the overarching principle of civil litigation to determine proceedings on their merits.

The applicants, acting as attorneys under 2022 powers of attorney, sought to invalidate 2023 powers of attorney granted to the respondents (the incapable person's sons) on the basis of incapacity.

At a case conference, the court considered interim arrangements for the incapable person's care and discharge from the hospital.

Finding a strong prima facie case that the 2023 powers of attorney were invalid, the court granted an interlocutory injunction prohibiting the respondents from acting under them, thereby leaving the applicants with exclusive authority to move the incapable person to a private rehabilitation facility pending the final hearing.

The applicants, current trustees of a trust, brought an urgent application concerning a real estate transaction closing that day, seeking relief related to the respondent's alleged former trustee status and his entitlement to ensure proper application of trust funds.

The respondent brought a counter-application.

The court denied the urgent relief sought by the applicants, finding their urgency self-induced and their approach tactical.

The judge emphasized that the complex issues deserved a fair airing on proper notice and that the applicants had the ability to resolve the matter to preserve the sale.

The court also acknowledged the respondent's legitimate concerns about potential personal liability as a former trustee and his right to due diligence.

Mohammad Akram, an incapable person with substantial property, had The Bank of Nova Scotia Trust Company appointed as interim guardian.

Due to persistent family disputes and non-cooperation, the interim guardian moved for its removal, the appointment of the Public Guardian and Trustee (PGT), and approval of its compensation and indemnification for legal fees.

The court determined it lacked authority to appoint the PGT as guardian without the PGT's consent and a formal application, especially since other family members expressed willingness to act.

The court denied the immediate removal of the interim guardian but varied the existing Order Giving Directions to establish a structured timetable for the appointment of a permanent guardian and mandatory mediation.

The court granted the interim guardian permission to pre-take compensation and indemnify itself for legal fees, and appointed the PGT as litigation guardian for the purpose of passing accounts.

The defendants, a law firm and lawyer, brought a motion to temporarily stay a negligence action against them.

The plaintiffs, estate trustees, had sued the defendants for allegedly negligent advice regarding a share transfer to a charitable foundation, which led to a significant tax liability after a Canada Revenue Agency reassessment.

The plaintiffs had also appealed this reassessment to the Tax Court of Canada.

The court granted the temporary stay, finding a substantial overlap of issues and factual background between the negligence action and the tax appeal.

It concluded that the outcome of the tax appeal would significantly influence, if not be determinative of, the negligence claim, and that a stay would avoid unnecessary and costly duplication of judicial and legal resources without causing significant prejudice to the plaintiffs' access to justice.

An estate trustee sought the court’s advice and direction regarding the disposition of three lapsed residuary shares under a will where three of four named beneficiaries predeceased the testatrix.

The court considered whether the residuary gift constituted a class gift or whether a contrary intention in the will prevented intestacy.

The court held that individually named beneficiaries did not constitute a class gift and that the evidence did not establish a contrary intention to avoid intestacy.

Applying s. 47(6) of the Succession Law Reform Act, the lapsed shares passed on intestacy to the closest next of kin.

A Benjamin order was granted permitting distribution of the intestate portion of the estate equally to two identified first cousins.

This decision addresses costs arising from multiple motions and proceedings in protracted estate litigation involving disputes between estate trustees and beneficiaries.

Applying s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court emphasized proportionality and fairness in determining cost awards.

The court found that much of the litigation resulted from the estate trustees’ inability to cooperate and noted that one trustee frequently advanced unreasonable and self‑interested positions that prolonged proceedings.

Costs were awarded to various beneficiaries and the Office of the Children’s Lawyer, largely payable out of the estate, with certain costs ordered personally against one trustee where his conduct unnecessarily caused litigation.

The court fixed specific monetary awards for each participant and rejected certain cost claims where the conduct did not justify indemnification.