Karen Watters

Following the determination of two estate litigation applications, the court assessed costs.

The court found that the estate trustee's application for directions on will interpretation engaged public policy considerations, entitling both parties to costs of $55,000 payable by the Estate.

Conversely, the respondent's application to remove the estate trustee did not engage public policy and was governed by the standard civil costs regime.

The respondent was ordered to pay $35,000 in partial indemnity costs to the estate trustee, who was also entitled to full indemnification of his remaining $20,000 in costs from the Estate.

Following the determination of two estate litigation applications, the court assessed costs.

The court found that the estate trustee's application for directions on will interpretation engaged public policy considerations, entitling both parties to costs of $55,000 payable by the Estate.

Conversely, the respondent's application to remove the estate trustee did not engage public policy and was governed by the standard civil costs regime.

The respondent was ordered to pay $35,000 in partial indemnity costs to the estate trustee, who was also entitled to full indemnification of his remaining $20,000 in costs from the Estate.

This case involved multiple applications concerning the estates of Leonardo and Rose La Calamita, heard together.

The primary dispute was between the deceaseds' children, John Michael La Calamita (Estate Trustee of Leonardo's Estate) and Diane Marie LaCalamita.

John sought an interpretation of Leonardo's Will to allow him to appropriate the Yonge Street Property (the main estate asset) by paying Diane a cash sum for her one-third share.

Diane opposed this, arguing it was an abuse of process, and sought John's removal as estate trustee or the appointment of a disinterested trustee for the property's sale.

Diane also objected to John's application for a Certificate of Appointment of Estate Trustee.

The court ruled that Leonardo's Will does not permit John's proposed appropriation method, specifically requiring a disinterested trustee for any private sale of estate property to a trustee-beneficiary.

However, the court dismissed Diane's claims for John's removal as trustee and her abuse of process argument.

The court also dismissed the immediate appointment of a disinterested trustee, noting it would only be necessary if a private sale were pursued.

Ultimately, the court ordered the issuance of the Certificate of Appointment of Estate Trustee to John.

This case involved multiple applications concerning the estates of Leonardo and Rose La Calamita, heard together.

The primary dispute was between the deceaseds' children, John Michael La Calamita (Estate Trustee of Leonardo's Estate) and Diane Marie LaCalamita.

John sought an interpretation of Leonardo's Will to allow him to appropriate the Yonge Street Property (the main estate asset) by paying Diane a cash sum for her one-third share.

Diane opposed this, arguing it was an abuse of process, and sought John's removal as estate trustee or the appointment of a disinterested trustee for the property's sale.

Diane also objected to John's application for a Certificate of Appointment of Estate Trustee.

The court ruled that Leonardo's Will does not permit John's proposed appropriation method, specifically requiring a disinterested trustee for any private sale of estate property to a trustee-beneficiary.

However, the court dismissed Diane's claims for John's removal as trustee and her abuse of process argument.

The court also dismissed the immediate appointment of a disinterested trustee, noting it would only be necessary if a private sale were pursued.

Ultimately, the court ordered the issuance of the Certificate of Appointment of Estate Trustee to John.

This appeal concerned the rectification of a will.

The Estate Trustee sought to rectify the will of the deceased, John Ihnatowych, to exclude his biological son from a prior relationship and that son's children, arguing John intended to benefit only his children from his marriage and their offspring.

The application judge granted rectification, finding the will did not accurately reflect the testator's instructions to his lawyer.

The appellants (the biological son and his children) appealed, arguing the judge applied an incorrect test for rectification and misassessed the evidence.

The Court of Appeal dismissed the appeal, affirming that the application judge correctly applied the test for will rectification, which permits correction when a testator's instructions are not carried out.

The court distinguished the test for rectification of agreements from that of unilateral wills and found the evidence of the testator's clear instructions to his lawyer was sufficient to support the rectification.

In the context of complex estate litigation, the applicant sought to withdraw two affidavits previously filed in support of a motion for the appointment of an Estate Trustee During Litigation and for documentary production.

The applicant argued the affidavits were no longer necessary due to a subsequent consent order that streamlined the proceedings and provided for documentary discovery.

The respondent opposed the withdrawal, arguing it was a tactic to shield the affiants from cross-examination.

The court held that leave is required to withdraw an affidavit filed in support of a motion.

Applying the Gill factors, the court granted leave, finding that the affidavits had not yet been used by the court, the respondents would not be prejudiced, and the withdrawal was a legitimate response to the evolving litigation landscape rather than an improper tactic to avoid cross-examination.

The moving party, claiming to be the common-law spouse of the deceased, sought the appointment of an Estate Trustee During Litigation (ETDL), arguing the current estate trustee was in a conflict of interest by opposing her claims.

The estate trustee brought a cross-motion to evict the moving party from the deceased's property and to sell it, citing the estate's financial deficit and required repairs.

The court dismissed the motion for an ETDL, finding the estate trustee's opposition to a creditor's claim did not require a neutral trustee.

The court granted the cross-motion, ordering the moving party to vacate the property and authorizing its sale, noting the moving party had suitable alternative accommodation and her claims against the estate would not be prejudiced.

An appeal from a motion judge's order rectifying a will to correct a drafting error.

The estate trustee sought to correct the will to reflect the deceased's intention to liquidate sufficient shares to provide two children with $1 million each.

The widow, who did not challenge the will and elected to take under it, appealed the rectification order and sought leave to appeal the costs disposition.

The Court of Appeal upheld the motion judge's decision, finding no error in principle and that the factual findings were amply supported by evidence.

Leave to appeal costs was denied.

The appellant appealed an order of the Superior Court of Justice dismissing his action due to failure to pay security for costs.

The motion judge had dismissed the appellant's cross-motion to vary the security order and subsequently dismissed the action.

The Court of Appeal held that the motion judge correctly determined it was inappropriate to revisit the security for costs order or circumvent it after appeal rights had been exhausted.

The court found no error in principle and dismissed the appeal, awarding costs to the respondent.