Douglas Donald Buchmayer

Following an appeal in an estate matter, the respondent sought costs of $43,630.71 on a substantial indemnity basis, payable immediately rather than from the appellant's share of the estate.

The Divisional Court found no reprehensible conduct to justify substantial indemnity costs and fixed costs at $28,000 on a partial indemnity basis.

The court ordered the costs to be paid forthwith due to uncertainty regarding the timing of the estate's distribution.

The appellant appealed an order approving the passing of accounts by the estate trustee of their late brother's estate.

The appellant argued the audit judge erred in the standard of recordkeeping required, specifically regarding the absence of written receipts for some expenses.

The Divisional Court dismissed the appeal, finding the audit judge correctly applied the standard of care of a person of ordinary prudence and reasonably accepted the trustee's sworn explanations and corroborating evidence.

The court also upheld the audit judge's decisions regarding the distribution of artwork, the refusal to order a trial of late-raised issues, and denied leave to appeal the costs order.

Following a successful application to remove the respondents as trustees of a family trust, the applicant sought costs on a substantial indemnity basis payable by the trustees personally.

The court awarded the applicant partial indemnity costs payable by the trustees personally, finding their conduct unreasonable but not reprehensible.

The balance of the applicant's full indemnity costs was ordered to be paid from the family trust.

The trustees were denied indemnification from the estate for their own costs due to their unreasonable conduct.

The moving parties sought leave to appeal an order removing them as trustees of a family trust and replacing them with a bank.

The Divisional Court dismissed the motion for leave to appeal, holding that an order removing a trustee is a final order, not an interlocutory one.

Therefore, any appeal of the order must be brought to the Court of Appeal, not the Divisional Court.

The applicant sought the removal of the respondents as trustees of a family trust, alleging mismanagement, failure to account, and bad faith.

The trustees had made over $3 million in undocumented, unsecured loans to themselves and their children, failed to pass accounts for over a decade, and attempted to dictate the terms of the applicant's will in exchange for continuing his monthly trust payments.

The court found that the trustees' conduct was so unreasonable that no honest or fair-dealing trustee would have acted in that way, and that they failed to act impartially despite having absolute discretion.

The application was granted, the trustees were removed, and an institutional trustee was appointed in their place.

The applicant estate trustee sought costs following a successful application to pass her accounts.

The respondent beneficiaries had raised over 300 objections, abandoning most at the hearing, and maintained unfounded allegations of theft and fraud against the trustee.

The court found the respondents' conduct reprehensible and ordered them to personally pay the trustee's costs on a substantial indemnity basis, fixed at $325,000.

On a contested passing of accounts arising from a complex cross-border intestacy involving real property, artworks, and personal property located in Mexico, the court held that an estate trustee is not required to produce a written receipt for every expense if accurate accounts, sworn explanations, and corroborating records establish that the disbursements were reasonably incurred for the estate’s benefit.

Applying the ordinary prudence and diligence standard from trustee accounting jurisprudence, the court rejected extensive objections alleging mismanagement, misappropriation, and failure to follow the wishes of the majority beneficiaries.

Most challenged expenses, including memorial costs, travel, staffing, legal fees, and marketing assistance, were approved, subject to limited disallowances and correction of a $50,000 accounting error.

Trustee compensation was fixed at $200,000 exclusive of HST using the tariff cross-checked against the five established compensation factors.

The applicant brought a motion to strike an affidavit sworn by his mother, one of the respondent trustees, on the basis that she was not produced for cross-examination due to concerns about her capacity.

The applicant argued that admitting the affidavit would prejudice the fair hearing of his application to remove the trustees and would be an abuse of process.

The court dismissed the motion, finding that the applicant had not availed himself of opportunities to cross-examine the affiant with accommodations or to seek court directions earlier.

The court held that the affidavit should be admitted, with the lack of cross-examination going to the weight of the evidence to be determined at the hearing.

The appellant appealed a Master's decision appointing an Estate Trustee During Litigation (ETDL) to manage an intestate estate.

The appellant argued the Master exceeded her jurisdiction by effectively removing her as administrator and authorizing the ETDL to distribute the residue of the estate.

The Divisional Court dismissed the appeal, finding no error in the Master's decision to appoint an ETDL due to the adversarial relationship between the parties.

However, the court noted that certain provisions of the resulting order exceeded the Master's jurisdiction and directed the parties to amend the order or return to the Master.

The respondents, beneficiaries of the Estate of Toller James Montague Cranston, brought a motion for directions seeking the appointment of an Estate Trustee During Litigation (ETDL) and the removal of the current Estate Trustee, Phillippa Baran.

The respondents alleged mismanagement, particularly concerning the sale of artwork against their wishes for in-specie distribution, and conflicts of interest.

The Estate Trustee opposed, arguing the motion was a procedural tactic and that she was acting in the estate's best interests.

The court found the administration adversarial and the Trustee in a conflict of interest, granting the motion to appoint an ETDL to ensure transparent and orderly administration.

This endorsement addresses the costs of a dismissed motion where the applicant sought leave to extend limitation periods under the Family Law Act for an equalization claim, suspension of estate distribution, and payment of expert costs by the estate.

The respondent, Sean Lundy, was wholly successful on the motion and sought full indemnity costs based on reasonable offers to settle.

The court found the applicant behaved unreasonably in refusing the respondent's settlement offers and awarded the respondent $15,000 in fixed costs, payable by the applicant.

The applicant, Carol Lundy, sought an order to extend the limitation periods under the Family Law Act (FLA) to file an election and equalization application, suspend estate distribution, and have the estate pay for expert valuations.

The motion was brought more than six months after the deceased's death, past the statutory deadline.

The respondent, Sean Lundy (son and co-executor), opposed the extension, arguing Carol's delay was not in good faith and would cause substantial prejudice.

The court dismissed Carol's motion, finding she failed to demonstrate good faith in her delay, having had access to financial information, acted as co-estate trustee, accepted gifts under the will, and tacitly acquiesced in the distribution of company shares.

The court also noted some prejudice to Sean due to the partial distribution of the estate.