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.

This endorsement addresses the costs of a motion to remove the defendants' lawyers of record.

Both parties filed extensive written costs submissions that significantly exceeded the page limits and formatting requirements set out in the court's previous ruling.

Rather than rejecting the non-compliant materials or deciding the matter on the excessive written record, the court ordered that the issue of costs be resolved through a two-hour oral hearing.

The parties were prohibited from filing any further materials without leave of the court.

The plaintiffs brought a motion seeking to remove the defendants' joint counsel of record due to conflicts of interest and seeking leave to amend their statement of claim in an ongoing estate and corporate oppression dispute.

The defendants brought a cross-motion to strike an expert affidavit relied upon by the plaintiffs.

The court found that the defendants had procedurally abandoned their motion to strike the affidavit.

The court granted the plaintiffs' motion to remove the defendants' counsel, finding that joint representation of the various defendants created severe conflicts of interest that threatened public confidence in the administration of justice.

Finally, the court granted the plaintiffs leave to amend their statement of claim and stayed the action until a litigation administrator is appointed for the deceased's estate.

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.

The moving parties sought to settle an order denying leave to appeal to the Divisional Court by inserting a provision transferring the appeal to the Court of Appeal.

The responding party opposed the request, arguing that substantive relief not requested in the original motion cannot be sought during an appointment to settle an order.

The court agreed, holding that a motion to settle an order is procedural and declined to vary the order as signed by the Registrar.

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 moving party sought an extension of time to bring a motion for leave to appeal an interlocutory order to the Divisional Court.

The moving party had mistakenly filed a notice of appeal in the Court of Appeal, believing the order was final.

The court applied the test for extending time, finding that the moving party had a bona fide intention to appeal, adequately explained the delay, and that the respondent suffered no prejudice.

The court also found the proposed appeal had some merit, meeting the low threshold required.

The motion to extend time was granted.

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.