Kathleen McDormand

This is an estate dispute involving five members of the Zuccarini family concerning the estate of the late family patriarch and the management of defendant corporations.

The plaintiffs allege undue influence by one defendant over the deceased and his widow, challenge the validity of wills executed in 2019, and seek an oppression remedy regarding corporate management.

The court addressed a motion to appoint a litigation administrator for the estate, which had been stayed pending proper constitution of the proceedings.

The court appointed a neutral third-party lawyer as litigation administrator and determined that the estate and corporate defendants should bear the costs of the administrator's fees.

This case conference endorsement addresses the terms of an order following a successful motion by the plaintiffs to remove the defendants’ lawyers of record.

The parties could not agree on two terms: whether the order should specify that each defendant must be separately represented, and whether a deadline should be set for the defendants to retain new counsel.

The court held that the order should simply require separate representation, as per the original ruling, and declined to impose a deadline for retaining new counsel.

The endorsement also clarifies that the mechanism for representation of the Estate of Landino Zuccarini remains to be determined at a future hearing.

The appellant appealed the dismissal of an application seeking an accounting of her late mother's estate.

The application judge had dismissed the application on two grounds: that a 2019 consent order concluded the matter, and that further litigation would constitute an abuse of process.

The Court of Appeal found no palpable and overriding error in the application judge's decision, upholding the interpretation of the consent order and the finding of abuse of process.

The appeal was dismissed, and costs were awarded to the respondents.

This decision addresses cross-applications for the removal of estate trustees in the Estate of Alfonso Sartarelli.

The deceased's two children, Elke Kasanda and Helmut Sartarelli, along with a solicitor, were appointed trustees.

The estate administration stalled due to significant conflict between Elke and Helmut.

Elke alleged Helmut prioritized his interests and was unfit, while Helmut accused Elke of obstructing administration, acting unilaterally, and disregarding fiduciary duties, particularly concerning tax payments.

The court dismissed Elke's application to remove Helmut, finding he acted reasonably and relied on professional advice.

Conversely, Helmut's application to remove Elke was granted, as the court found Elke had consistently prioritized personal grievances over fiduciary duties, obstructed necessary estate actions (like tax filings), disregarded professional advice, and acted unilaterally, thereby compromising the estate's proper administration and increasing costs.

The defendants moved to set aside an order granting a certificate of pending litigation (CPL) against the LaSalle Property and to discharge the CPL.

The plaintiff had obtained the CPL without notice, claiming a plausible interest in the property via constructive or resulting trust and proprietary estoppel.

The defendants argued no triable interest and material non-disclosure.

The court dismissed the defendants' motion, finding a triable issue existed and no material non-disclosure that would have altered the original CPL grant.

The court also dismissed a third party's motion to intervene.

Following the dismissal of an application for an accounting of an estate as an abuse of process, the successful respondents sought costs on a full indemnity basis.

The applicants argued for partial indemnity costs.

The court found that the respondents, as estate trustees defending an application related to their administration of the estate, were entitled to full indemnity.

Applying the principle of proportionality, the court fixed the costs payable by the applicants at $100,000.

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.

Elke Kasanda, as Estate Trustee, sought directions for a trial of various issues, including the removal of co-trustees Helmut Sartarelli and D. Scott Murray, and disclosure of legal records from Murray concerning the deceased's estate planning and business sale.

The court dismissed the motion for disclosure of Murray's records, citing solicitor-client privilege and lack of evidence for waiver or exception.

The court adjourned the balance of the motion for directions, granting Elke leave to bring a separate motion to remove Helmut and Murray as Estate trustees, noting that such a motion does not require the same evidentiary threshold as a motion for directions under Rule 75.06.

Mediation was ordered, with costs to be borne by the Estate.

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 objectors, the widower and daughter of the deceased, brought a motion for directions under Rule 75.06 challenging the validity of the deceased's 2018 wills on grounds of lack of testamentary capacity and undue influence by the applicant son.

The court found the objectors met the minimal evidentiary threshold to call the wills into question.

The court ordered broad documentary discovery and the examination of the drafting lawyer, and appointed an independent estate trustee during litigation on an interim basis to ensure fairness and preserve estate assets.

The Estate Trustee sought directions from the court regarding the interpretation and distribution of two estates following the murder of the testators by their adopted son.

The central issue was the application of the criminal forfeiture rule (slayer rule) and whether the estates should be held in trust for the murderer's potential unborn children or accelerated to alternate beneficiaries.

The court applied the implied intention approach, ruling that the murderer was disentitled from any benefit.

It further determined that the gifts to the murderer's unborn issue should also fail due to public policy and the absence of living issue at the time of disentitlement, thereby accelerating the distribution of the estates to the next lineal beneficiaries (the testatrix's brothers), subject to specific annuity provisions.

In a bifurcated family law and estate proceeding, both the applicant and the respondent estate brought motions to compel answers to questions refused or taken under advisement during questioning.

The central issue for the first phase of the trial was the validity and enforceability of a 1986 marriage contract.

The court ordered the applicant to produce documents relating to her prior divorce and records from her physician and counsellor, finding them relevant to her understanding of domestic contracts.

The court dismissed the applicant's motion to compel the estate trustee to answer questions regarding the deceased's subsequent estate planning and relationships with lawyers, finding them irrelevant to the 1986 contract or overly broad.

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 applicant sought costs of $34,160 on a full recovery basis against a third-party witness who unsuccessfully opposed a motion to be questioned prior to trial.

The third party argued he was a non-party and sought his own costs.

The court found the third party was a party for the purposes of the motion under the Family Law Rules and that the applicant was the successful party.

Applying principles of proportionality and considering the respective offers to settle, the court awarded the applicant costs fixed at $10,000.

Following a successful motion by the respondent Estate to bifurcate the trial regarding the validity of a marriage contract, the Estate and the co-respondent sought costs.

The Estate claimed over $74,000 in partial indemnity costs, which the applicant argued was disproportionate.

The court agreed that the Estate's costs were excessive and disproportionate for a one-day motion, despite the high stakes and complexity.

The court fixed the Estate's costs at $35,000 and the co-respondent's costs at $2,500.

The applicant, the common-law spouse of the deceased, brought a dependent's support claim against the deceased's intestate estate.

Prior to the deceased's death, the applicant transferred approximately $570,000 to herself while acting as his Power of Attorney.

The court found that despite these transfers, the estate had not adequately provided for the applicant's future needs and the deceased's moral obligations.

The court awarded the applicant the farm house property, the funds already received, and an additional cash payment, totaling approximately half of the estate's value.

The respondent Estate brought a motion to bifurcate the proceeding, seeking a first trial on the validity of a Marriage Contract, separate from other issues including the applicant's claim to set aside the contract, elect equalization, and seek dependant relief.

The applicant opposed, arguing duplication of evidence and prejudice.

The court granted the bifurcation, finding it would lead to a more just, expeditious, and less expensive determination by potentially narrowing issues and promoting settlement, aligning with the culture shift emphasized in Hyrniak v. Mauldin.

The Bank of Nova Scotia Trust Company, as Estate Trustee During Litigation (ETDL) of the Estate of Mary Kathleen Kuklis, applied for directions regarding the sale of real property, disposition of personal property, and production of documents from Martin Kuklis, a former attorney for property.

Following a settlement of the application, the issue of costs remained.

The court found Martin Kuklis's conduct, including his failure to pass accounts and self-interested opposition, warranted an award of substantial indemnity costs against him personally, payable first from his share of the Estate.

Karla Anne Shawn Kuklis, Shawna Ellis, and Wesley Kuklis were not held personally responsible for costs, and their request for costs was dismissed.

The ETDL was awarded full indemnity costs, with the difference between full and substantial indemnity paid from the Estate.

The applicant, widow of the deceased, sought interpretation of an ambiguous will and also advanced alternative claims for equalization, dependent's relief, and constructive trust.

The respondents, children of the deceased, brought a motion for document production and opposed the applicant's motion to separate the will interpretation from the alternative claims.

The court found the applicant's joinder of civil and family law claims procedurally incorrect.

The court ordered the severance of the family law claims (equalization, unjust enrichment, support) and their transfer to Family Court, with a stay.

The will interpretation, rectification, or invalidity issues will continue as an application under the Rules of Civil Procedure.

The respondents' production motion was dismissed as premature.