Kimberly Whaley

At a case conference in a dependants' relief application, the applicants sought the summary appointment of an Estate Trustee During Litigation (ETDL).

The court adjourned the request to allow the responding party proper notice and an opportunity to be heard, noting that the respondent's counsel lacked instructions.

The court ordered the deposit of the will on consent and urged the parties to cooperate to avoid unnecessary costs in a small estate.

The Public Guardian and Trustee, acting as litigation guardian for an incapable person, brought a summary judgment motion against the incapable person's former attorney for property.

The attorney had transferred the incapable person's unencumbered residential property to himself in trust for his daughter for no consideration, subsequently sold it, and misappropriated funds from her bank accounts.

The court found the attorney breached his fiduciary duties and ordered him to pay damages of $2,550,000 for the property sale and $150,015 for the misappropriated funds, plus full indemnity costs.

The applicant and respondent, siblings and joint attorneys for property for their incapable mother, disputed the administration of their late father's estate.

The applicant sought to appoint CIBC Trust as Estate Trustee to administer the estate under a 1974 Will, which left the residue to their mother.

The respondent opposed, arguing their father had made a later will disinheriting their mother, and sought an order compelling an election under the Family Law Act to protect her interests.

The court found no evidence of a later will despite extensive searches, dismissed the respondent's motion, appointed CIBC Trust as Estate Trustee, and declared the 1974 Will valid.

Costs were awarded on a full indemnity basis, capped at $125,000, payable by the respondent, the estate, and the mother.

In contentious estate litigation, the applicant brought a broad motion seeking numerous procedural and substantive orders relating to the administration of an estate, production of records, and interim support.

The court found the litigation had become highly acrimonious and expensive, warranting active case management and intervention to regularize the proceedings.

Orders were made requiring the respondents to pass accounts, appointing an estate trustee during litigation, compelling production of medical and solicitor records relevant to testamentary capacity, permitting amendment of the application to determine the deceased’s last will, and directing an organized exchange of productions.

The court also granted the applicant an interim funding order from the estate for legal expenses.

Contempt motions brought by both sides were dismissed.