Brad Wiseman

In an ongoing estate litigation matter, the court determined costs for several preliminary steps, including the determination of an estate asset, production of solicitor files, an abandoned consolidation motion, and case management conferences.

The court awarded costs to the applicant and other beneficiaries, payable largely by the former estate trustees personally due to their improper conduct and conflicts of interest, with some portions payable by the estate.

The Estate Trustee brought a motion to transfer an action regarding the administration of the estate from Brantford to Toronto.

The moving party argued that Toronto was the more convenient forum as the deceased lived there, the estate was filed there, and most beneficiaries and assets were located there.

The responding party opposed the transfer, noting the action was properly commenced in Brantford and significant procedural steps had already occurred there.

The court applied the holistic balancing test under Rule 13.1.02 and found the moving party failed to establish that Toronto was a significantly better venue.

The motion to transfer was dismissed.

The applicant, claiming to be the common law spouse of the deceased, sought dependant support from the deceased's estate after the six-month limitation period had expired.

The estate trustees opposed the extension.

The court found that the bulk of the estate remained undistributed and there was no prejudice to the estate by the delay.

Applying the principles for extending the limitation period under section 61(2) of the Succession Law Reform Act, the court granted the extension, finding it proper to allow the application to proceed to trial to determine if adequate provision was made for the applicant.

The appellant appealed a costs order made by the application judge, arguing a lack of jurisdiction and inadequate notice.

The Court of Appeal dismissed the appeal, finding that the claim for further relief, a previous costs order, and a settlement offer provided adequate notice.

The court also upheld the costs order as justified because the application judge found the appellant had perjured herself, protracting the litigation.

Dispute among siblings and co-executors regarding administration of an estate where the primary assets consisted of two real properties specifically gifted under a will and holograph codicil.

Motions for directions were brought amid conflict between executors over whether to sell the properties to satisfy estate debts or allow a beneficiary additional time to fund payment of those obligations.

The court found the administration of the estate had stalled due to a serious breakdown in trust between the executors and beneficiaries.

To preserve the estate and ensure proper administration, both executors were removed and replaced with an independent professional executor.

The newly appointed executor was directed to determine the estate’s debts and expenses and administer the estate accordingly, including potential sale of property if necessary.

The appellant appealed an order of the Superior Court of Justice.

Prior to the hearing, the parties reached a settlement.

On consent, the Court of Appeal dismissed the appeal without costs.

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.

The testator left a life interest in the residue of his estate to his wife, directing that upon her death, the residue be divided equally between his son and daughter, 'per stirpes'.

The son predeceased the life tenant, leaving his estate to his second wife.

The application judge held that the phrase 'per stirpes' indicated an intention to benefit the son's children, rather than his estate or the surviving daughter.

The Court of Appeal dismissed the appeal, finding that while a gift to named children 'per stirpes' can be contradictory, in this context it conveyed the testator's intention to benefit his children's children if either child predeceased the life tenant.