Lou-Anne Frances Farrell

This appeal concerned the interpretation of a will's bequest of a home.

The application judge had determined the interest was a licence and the condition that the beneficiary "live in the home" was void for uncertainty, leading to the entire bequest failing.

The Court of Appeal found that the application judge erred in characterizing the interest as a licence rather than a life interest.

It upheld the finding that the "no longer living in the house" condition was a condition subsequent and was void for uncertainty.

Consequently, the gift of the home subsists as a life interest without the uncertain condition.

This protracted estate litigation involved an application by Richard Belanger seeking to refer various estate administration issues, including those related to a "butterfly transaction," to a retired judge, Mr. McGarry, for arbitration or reference.

A responding motion by Judith Olivastri sought to dismiss Belanger's application.

The court found that the "Agreement in Principle" between the siblings contemplated a court-directed reference, not arbitration, and that the condition precedent for this agreement (CRA approval of the butterfly transaction) had not been met.

Furthermore, the agreement to refer issues to Mr. McGarry was limited to "outstanding applications and motions" at the time of the agreement, which did not include disputes about the butterfly transaction itself.

The court also clarified that a motion for summary judgment (Rule 20) or to stay/dismiss an action (Rule 21.01(3)(c)) is not applicable to applications.

Belanger's application was dismissed.

In an estate administration dispute, the court determined liability for costs following earlier reasons criticizing the conduct of the estate trustees.

The trustees had failed for several years to distribute a simple estate despite the assets being liquidated and ready for distribution, instead engaging in mutual blame and obstructive conduct.

The court rejected submissions that the estate should indemnify the trustees’ legal costs, finding that their disregard of fiduciary duties should not diminish the beneficiaries’ shares.

The court therefore ordered the trustees personally responsible for the applicant’s full indemnity costs.

Each trustee was directed to pay one-half of the award, with any shortfall payable personally.

An application was brought under rule 14.05(3) of the Rules of Civil Procedure and ss. 5 and 37 of the Trustee Act seeking the removal of two estate trustees.

The estate had remained undistributed for more than five years despite liquid assets, due to significant conflict and animosity between the co‑trustees which resulted in administrative paralysis.

The court found fault on both sides and concluded that continuation of the trustees would jeopardize the proper execution of the trust and the interests of the beneficiaries.

Both estate trustees were removed and a neutral succeeding estate trustee was appointed.

The former trustees were ordered to pass their accounts within 60 days.