Jennifer M.C. Stebbing

The Court of Appeal for Ontario granted an extension of time to appeal an order validating two technically deficient wills under s. 21.1(1) of the Succession Law Reform Act.

The moving parties, who had not opposed the application at first instance, explained their delay and raised serious issues about the testamentary intentions of the deceased and the application judge’s process.

The court found no undue prejudice to the responding party and dismissed a cross-motion for security for costs.

The plaintiff, as estate trustee, moved for summary judgment against defendant Emanuel Cabral for damages arising from his failure to close an agreement of purchase and sale for the estate's property.

Defendant Sherif Behiry was noted in default.

The court found that the defendant Cabral breached the agreement and failed to demonstrate that the plaintiff did not reasonably mitigate her damages, despite expert opinion suggesting a longer relisting period.

The court granted summary judgment to the plaintiff against Cabral and default judgment against Behiry for the difference in sale price and associated expenses.

Cabral's counterclaim was dismissed by consent.

The respondent estate trustee brought a motion to transfer the application to remove him as estate trustee from Hamilton to the Toronto Region.

The applicant opposed the transfer, having chosen Hamilton due to its proximity to his residence and medical practice.

Applying the holistic test under Rule 13.1.02 of the Rules of Civil Procedure, the court found that the moving party failed to establish that the proposed venue was significantly better than the applicant's choice.

The motion was dismissed.

The applicant brought a motion to be appointed as the temporary Guardian of Property for his mother, the respondent.

The respondent had refused to comply with previous court orders to undergo a capacity assessment and had disappeared, leaving her property taxes and mortgage in arrears.

The court found on a balance of probabilities that the respondent lacked the capacity to manage her property and appointed the applicant as temporary Guardian of Property with the authority to sell her residence.

On a contested passing of accounts, the court considered the compensation claimed by an estate trustee during litigation for administering a complex estate over several years involving extensive litigation, missing assets, and the unwinding of a corporate entity owned by the estate.

One charitable beneficiary objected to aspects of the trustee’s compensation, including the application of percentage fees on large capital transactions and the treatment of accounting fees.

The court accepted certain accounting adjustments and deductions but declined to reduce the trustee’s compensation in light of the extraordinary complexity of the estate administration and the significant recovery work undertaken.

A special fee was also awarded for the additional effort required to wind up the corporate estate asset.

The court further determined the outstanding legal fees payable to counsel for several charitable beneficiaries and ordered costs on the passing of accounts.