COURT FILE NOS.: 05-212/19 and CV-21-00673520-00ES DATE: 20220513

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CAROLYN MAE REEVES Applicant – and – ANNE MARIE VERONICA INGLIS Respondent – and –

Ryan Solcz, for the Applicant, Carolyn Mae Reeves Sean Carter and Heidi LeBlanc, for the Respondent, Anne Marie Veronica Inglis

MARGARET BISHOP Applicant – and – ANNE MARIE VERONICA INGLIS, CAROLYN MAE REEVES and ROBERT BISHOP Respondents

Kelley Bryan, for the Applicant, Margaret Bishop Sean Carter and Heidi LeBlanc, for the Respondent, Anne Marie Veronica Inglis Ryan Solcz, for the Respondents, Carolyn Mae Reeves and Robert Bishop

HEARD VIA VIDEOCONFERENCE: January 6, 2022 and March 22, 2022

REASONS FOR JUDGMENT

Dietrich J.

Overview

1The late Veronica Bishop (the “Deceased”) died on March 31, 2009. The Deceased was predeceased by her husband and survived by her three adult children, William Joseph Bishop (“William”), Anne Marie Veronica Inglis (“Anne Marie”), and Margaret Elizabeth Bishop (“Margaret”). All three children are named as beneficiaries of the Deceased’s will dated the 29th day of November, 2004 (the “Will”). Anne Marie and William are named as executors and trustees, to act jointly.

2The Deceased was also survived by two adult grandchildren, Carolyn Mae Reeves (“Carol”) and Robert Bishop (“Robert”). They are William’s children and contingent beneficiaries under the Will. Carol is named as a contingent executor and trustee.

3Margaret always lived with the Deceased in the family home, a bungalow, at 112 Bellman Avenue, in the City of Etobicoke (the “Residence”). The Deceased took care in her estate planning to provide accommodation and financial support for Margaret following the Deceased’s death. The Will provides that Margaret may continue to live in the Residence, or a replacement residence, potentially, for the entirety of Margaret’s life. The expenses of such residence would be paid by the Deceased’s estate (the “Estate”) as long as Margaret resided there. Margaret’s share of the residue of the Estate would be held in a Henson trust for Margaret’s benefit (“Margaret’s Trust”).

4In 2019, approximately ten years after the Deceased’s death, Anne Marie, as an executor and trustee of the Estate, decided to sell the Residence. Margaret, who was still living there, strongly objected to the sale and made her objections known to Anne Marie, Carol and Robert. The sale went ahead, and Anne Marie found an apartment for Margaret in Etobicoke (the “Apartment”). Anne Marie assisted Margaret in her move to the Apartment in July 2019.

5Around the time of Margaret’s relocation, Carol commenced an application (court file no. 05-212/19) for, among other relief, the court’s advice and direction on two questions that require an interpretation of the Will: a) who are the executors and trustees of the Estate; and b) when do or did the assets of the Estate vest in the beneficiaries? Carol also seeks an order that Anne Marie account for her actions as a de facto executor and trustee of the Estate (“Carol’s Application”).

6In December 2021, Margaret commenced an application (court file no. CV-21-00673520-00ES) seeking dependant’s relief, among other relief, including a proper accounting by Anne Marie, and the removal of Anne Marie as an executor and trustee (“Margaret’s Application”).

7Justice Pattillo ordered that Carol’s Application and Margaret’s Application be heard together.

8Having heard these Applications, for the reasons that follow, on Carol’s Application, I find that:

a) the executors and trustees of the Estate, following William’s death, are Anne Marie and Carol;

b) the assets of the Estate, other than the Residence and the proceeds of sale of the Residence, vested on the death of the Deceased, subject to the payment of the Estate’s liabilities (including the maintenance and upkeep expenses of the Residence);

c) the proceeds from the sale of the Residence vested on the sale of the Residence, subject to the payment of the Estate’s liabilities; and

d) Anne Marie is required to bring an application to pass her accounts as executor and trustee of the Estate from the date of the Deceased’s death to the date of these reasons.

9For the reasons that follow, on Margaret’s Application, I find that Margaret is a dependant of the Deceased, and that Margaret’s Trust is entitled to a payment of $725,000 less any amount proven to be owing to Anne Marie in respect of amounts paid by Anne Marie personally, for Margaret’s benefit, (i) on account of the Apartment or (ii) expenses paid for Margaret personally. The net amount shall be paid to Margaret’s Trust in satisfaction of Margaret’s dependant’s relief claim and Margaret’s fifty per cent share of the net proceeds of sale of the Residence.

Background Facts

The Deceased’s Family

10Anne Marie has lived in Collingwood for the past 50 years. She is a retired schoolteacher and was recently widowed. She is financially secure. During the Deceased’s lifetime, Anne Marie would provide the Deceased and Margaret with financial assistance, as needed. Following the Deceased’s death, Anne Marie continued to assist Margaret financially, as needed, including by paying Margaret’s rent and other expenses relating to the Apartment.

11William was residing in a suite in the basement of the Residence at the time of the Deceased’s death. He continued to reside there for three months following the Deceased’s death before moving back to British Columbia, where Carol and Robert reside. He died in 2016.

12As an infant, Margaret contracted spinal meningitis and, consequently, developed lifelong health and mobility issues. Margaret is now 64 years of age and has a mild learning disability. Margaret has a grade 10 education. For several years, from approximately 1984 to 2010, Margaret was employed by the Toronto District School Board to supervise the lunchroom at a local school. She earned $15 per hour and worked 1.5 to 2 hours a day during the week. The Deceased would drive Margaret to and from the school. The income Margaret earned supplemented her Ontario Disability Support Program (“ODSP”) benefits. During the Deceased’s lifetime, Margaret contributed to household expenses when she could. Following the Deceased’s death, in or around the winter of 2010, Margaret slipped and fell on ice at the Residence. She suffered a spinal fracture. After Margaret’s slip and fall, she required mobility aids. She stopped working at the school and began to rely on a rollator walker and an electric scooter to get from place to place.

13Carol lives in Dawson Creek, British Columbia, where she has lived for many years. She did not have a particularly close relationship with the Deceased. Robert lives in British Columbia as well.

The Administration of the Estate

14Following the Deceased’s death, Anne Marie took on the bulk of the administration of the Estate. William did not play an active role as an executor and trustee.

15The Residence was the principal asset of the Estate. In 2005, the Deceased had arranged to retrofit the basement of the Residence with a rental suite to earn rental income to assist in meeting the expenses relating to the Residence. The Deceased anticipated that following her death, rental income from the basement suite would be available to Margaret to pay expenses related to the Residence, where Margaret would continue to reside.

16The full extent of the Estate assets, apart from the Residence, is unknown. Anne Marie sold the Deceased’s car for $2,200. She also swore an indemnity declaration, requested by the Bank of Montreal, in which she declared that the Deceased had savings and investment accounts in the total amount of $21,213.14. Anne Marie has not provided an accounting of these funds.

17Anne Marie has not made inquiries regarding additional Estate assets at any financial institution other than the Bank of Montreal.

18Anne Marie has provided some informal accounting of her administration of the Estate. The informal accounting is not acceptable to Margaret or Carol.

19The Will includes separate provisions to address Margaret’s specific interest in the Residence and the distribution of the residue of the Estate, generally, including the proceeds from the sale of the Residence.

20As permitted by the Will, following the Deceased’s death, Margaret continued to reside in the Residence. Margaret or Anne Marie collected the rent from the tenant residing in the basement suite and applied it toward the expenses of the Residence.

21For the decade following the Deceased’s death, Margaret routinely paid some utility bills, and she paid for some of the upkeep of the Residence using her own funds and the rental income. Anne Marie paid the insurance, municipal property taxes, property insurance premiums, some utility bills and miscellaneous expenses relating to the Residence prior to its sale. Anne Marie paid many of these expenses using her own funds.

22In June 2019, when Anne Marie decided to move Margaret out of the Residence and into the Apartment, Margaret opposed the move. She contacted Carol and Robert to express her wish to remain in the Residence, and her deep disappointment that Anne Marie wanted to sell the Residence. Despite Margaret’s objection, Anne Marie proceeded with the move and assisted Margaret with her transition to the Apartment.

23Anne Marie did not sell the Residence immediately following Margaret’s move to the Apartment. On April 16, 2021, Justice Pattillo ordered a sale of the Residence. This order was made on the consent of Carol and Anne Marie. Margaret was not then a party to Carol’s application but was added later, on Anne Marie’s insistence.

24The Residence was sold on July 28, 2021 for $1,315,000. The net proceeds of sale of $1,261,031.06 currently form part of the residue of the Estate and are being held in trust by Anne Marie’s counsel.

25Since July 2019, Anne Marie has paid the rent for the Apartment from her own resources. In these proceedings, Anne Marie seeks reimbursement from the Estate for the expenses she paid on behalf of the Estate and Margaret. As of December 13, 2021, Anne Marie’s claim for such expenses was $138,113.51. Anne Marie also seeks executor’s compensation for her administration of the Estate.

26Regarding the residue of the Estate, the Will provides that it is to be divided into equal shares, with one such equal share to be transferred and delivered to each of Anne Marie “per capita”, and William “per capita”, and one such equal share to be held in Margaret’s Trust for her lifetime. On Margaret’s death, the remaining capital of Margaret’s Trust is to be divided equally between the children of the Deceased, per capita, and if there is no surviving child, the remaining capital is to be divided among the Deceased’s issue in equal shares per stirpes.

A. CAROL’S APPLICATION

27The issues in Carol’s Application are as follows:

1. Who is/are the proper executor(s) and trustee(s) of the Estate?

2. What is the proper interpretation of the Will regarding when the Estate assets vest and when the distribution of the residue of the Estate occurs?

3. Should Anne Marie be required to pass her accounts as the de facto executor and trustee of the Estate from April 1, 2009 to the present?

Positions of the Parties

28Carol submits that, at least as soon as William died, she should have become the sole executor and trustee of the Estate in the place of Anne Marie, and that she, alone, is the lawful executor and trustee of the Estate. Carol also submits that Anne Marie has been remiss in her activities as the de facto executor and trustee, and that she should be ordered to pass her accounts.

29Further, Carol submits that William’s share of the Estate vested in him prior to his death and, therefore, his share of the residue of the Estate is payable to his estate, of which Robert and she are the beneficiaries. Alternatively, she submits that a part of the Will that deals with the distribution of the residue of the Estate is ambiguous and thus void for uncertainty. If that part is void, Carol asserts that a one-third share of the residue would be distributed to William’s heirs, namely Robert and her.

30Margaret agrees with Carol that a proper interpretation of the Will would result in Carol being the sole executor and trustee of the Estate. However, Margaret asks the court to appoint a neutral, professional trustee in the circumstances of this case.

31Margaret disagrees with Carol that any share of the Estate vested in William before he died, or that any part of the residual provision is ambiguous or void for uncertainty. Margaret asserts that the Will clearly provides that, following William’s death, the distribution of the residue of the Estate would be to Anne Marie and to Margaret’s Trust in equal shares. Margaret submits that the distribution of the residue should be subject to a first charge to fund her dependant’s support claim.

32Margaret agrees with Carol that Anne Marie should be ordered to pass her accounts. Margaret further submits that the court should order that none of the residue be distributed to Anne Marie until she has passed her accounts from April 1, 2009 to the present.

33Anne Marie submits that Carol’s Application is without merit and should be dismissed, and that an order should issue declaring Anne Marie as the proper executor and trustee of the Estate and confirming that she is entitled to executor’s compensation. Anne Marie further submits that she is entitled to reimbursement from the Estate for expenses relating to the Residence that she paid personally, and that she is entitled to be reimbursed from Margaret’s share of the Estate for expenses she paid personally for Margaret, including Margaret’s rent and other expenses.

34Anne Marie also submits that because William, having survived the Deceased, died before any of the residue was distributed, the proper distribution of the residue of the Estate is an equal division between Anne Marie and Margaret’s Trust. Anne Marie submits that no share of the Estate ever vested in William, and that no part of the residual provision is ambiguous or void for uncertainty.

1. The Proper Executor(s) and Trustee(s) of the Estate

35For the reasons that follow, I find that the executors and trustees of the Estate, following William’s death, are Anne Marie and Carol.

36Article II of the Will provides, in part, as follows regarding the appointment of executors and trustees:

I NOMINATE, CONSTITUTE AND APPOINT my daughter, Anne Marie Veronica Inglis, and my son William Joseph Bishop to jointly be my executors and Trustees of this my will provided that if he or she dies either before or after me and either before or after obtaining letters probate of this my Will or is or becomes at any time unable to or unwilling to act or to continue to act as the Executors and Trustees of this my Will then I NOMINATE, CONSTITUTE AND APPOINT my grand daughter [sic], Carolyn Bishop Reeves to act as the sole Executrix and Trustee of this my will in the place of my daughter, Anne Marie Inglis and/or my son William Joseph Bishop. ... I declare that the expression “my Trustee” used throughout this my Will shall include, where the context permits, the Executor(s) and Trustee(s) or the Executrix(ces) and Trustee(s) of this my Will for the time being acting as such whether original, additional or substituted.

Legal Principles Regarding Will Interpretation

37As noted by Brown J.A. in Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 36, when interpreting a will, a court’s task is to determine the testator’s actual or subjective intention as to how she intended to dispose of her property.

38Regarding the construction of a will, in Ross, Brown J.A. cited the Court of Appeal for Ontario’s decision in Burke (Re) (1959), [1960] O.R. 26, at p. 30:

Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

39The approach set out in Burke requires the court to examine the contents of the will, including the provision in question as well as the entire will. The approach in Burke also includes engaging the “armchair rule”, also referred to in Ross, at para. 38, with reference to Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020), at paras. 10.45 and 10.46:

In the first instance, the court may not be convinced that the testator’s intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning.

The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule.”

40In Ross, at paras. 40 and 41, Brown J.A. noted that while, historically, courts resorted to the “armchair rule” when the testator’s intention could not be determined from the plain meaning of the language used in the will, the recent trend is for courts to treat the “armchair rule” as an over-arching framework within which a judge applies the various tools for will interpretation at his or her disposal.

Analysis

41The language of the Will is clear in so far as it concerns the appointment of Anne Marie and William to act jointly as her executors and trustees. Both of them survived the Deceased. While there is no evidence to show that William took an active role in the administration of the Estate, there is evidence to suggest that he acknowledged his appointment. Anne Marie deposed that William “deferred … decisions and responsibilities” respecting the administration of the Estate to her. William’s name was included, as an executor and trustee on the “Indemnity Agreement for Estates” made between the executors and trustees of the Estate and BMO Financial Group on January 22, 2010. Anne Marie admits that following William’s death in 2016, she acted alone as executor and trustee of the Estate.

42Both Carol and Margaret assert that the language of the Will regarding the appointment of the executors and trustees must be interpreted to mean that Carol became the sole executor and trustee when William died, and that Carol could have become the sole executor and trustee earlier, when William became “unwilling to act or to continue to act as” as an executor and trustee. Their interpretation relies primarily on the use of the word “sole” in the appointment provision of the Will and the need to assign some meaning to that word.

43Anne Marie asserts that the language of the Will permitted her to act as the sole executor and trustee following William’s death because the Deceased only intended for Carol to act in the event that both Anne Marie and William could not act or were unwilling to act. Anne Marie asserts that this interpretation is consistent with the approach to will interpretation as set out in Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407. In Dice, the Court of Appeal for Ontario held that the court must determine the intention of the testator when he made the will, and the court must give effect to the testator’s intention ascertained from the language that was used, having regard to the will as a whole.

44Anne Marie submits that the language of the appointment provision in the Will states that Carol is “to act as the sole Executrix and Trustee of this my will in the place of my daughter, Anne Marie Inglis and/or my son William Joseph Bishop”, and that the use of “and/or” here demonstrates that the Deceased’s intention was that Carol was to serve only if both Anne Marie and William—the original, jointly appointed executors and trustees—were unable or unwilling to act. This interpretation ignores the use of the word “or.” If “or” is to be given meaning, then Carol would be appointed to act if either Anne Marie or William were unable or unwilling to act. This reading is consistent with the language in the appointment provision that states “provided that if he [William] or she [Anne Marie] dies either before or after me and either before or after obtaining letters probate … or is or becomes at any time unable or unwilling to act or continue to act ... then I … APPOINT my grand daughter, Carolyn …” If the Deceased had intended that Carol act only in the event that both Anne Marie and William were unable or unwilling to act, instead of using “either/or”, “both” would have been the better choice of word, followed by the use of the plural pronoun “they” as opposed to the singular “he” or “she.” Anne Marie contends that, at best, the Deceased intended that Carol would replace William or Anne Marie in the event that one of them became unable or unwilling to act or continue to act, but that the Deceased did not intend for Carol to replace both of them in that scenario.

45Carol submits that based on a plain reading of the appointment provision, the Deceased intended that Carol act as the sole executor and trustee if either or both of Anne Marie and William became unwilling or unable to act or continue to act. Carol submits that the use of the word “sole” is paramount. Margaret supports Carol’s interpretation of the appointment provision.

46If the word “sole” is to be given its plain meaning, then the provision could be read to mean that if either Anne Marie or William became unwilling or unable to act, then Carol would be appointed as the sole executor and trustee of the Estate. However, if the word “sole” is paramount, then the word “or” would have no meaning. Based on the interpretation advanced by Carol and Margaret, Anne Marie and William were only ever entitled to act jointly. It follows that Carol could only be appointed if both of them were unable or unwilling to act. In other words, the executors and trustees would either be Anne Marie and William, jointly, or Carol, solely, and there could not be a situation in which Carol replaces Anne Marie or William.

47In such a case such as this, where it is unclear which of the two conflicting terms was intended to apply, I must rely on additional tools to discern the testator’s intention. Specifically, I must put myself in the position of the testator at the point she made the Will and construe it in light of the surrounding facts and circumstances.

48There is no evidence from the drafting solicitor, Brian McLellan, regarding the Deceased’s instructions on the appointment of the executors and trustees.

49Considering the relevant surrounding facts and circumstances, I find that it is more likely than not that the Deceased intended that if either Anne Marie or William were unable or unwilling to act, Carol would be appointed to act with the remaining executor and trustee, and not as the sole executor and trustee.

50The Deceased initially chose two executors and trustees to act “jointly.” Throughout the Will, she refers to the executors and trustees as “Trustees” (even though she defined them as “Trustee”). The Deceased appointed both Anne Marie and William to administer the Estate, which included Margaret’s Trust.

51In or around November 2004, at the Deceased’s request, Anne Marie attended with the Deceased at the meeting with Mr. McLellan when the Deceased instructed him regarding the Will. Anne Marie deposed that the Deceased had told her that the Deceased’s primary concern in her estate planning was the ongoing care of Margaret, and that the Deceased had set aside a portion of the Estate to be used to ensure that Margaret had a safe place to live for as long as possible. To this end, the Deceased included a provision in her Will that would allow Margaret to live in the Residence indefinitely, and she established Margaret’s Trust, to benefit Margaret for her lifetime. Anne Marie further deposed that she understood that Margaret’s Trust, modeled as a Henson trust, would allow Margaret to continue to collect government benefits, such as ODSP benefits. Anne Marie also deposed that the Deceased was clear in her instructions that Anne Marie was to be appointed as an executor and trustee of the Estate.

52It is reasonable to infer that the Deceased wanted both her children, Margaret’s only siblings, Anne Marie and William, to participate in the management of the Estate and, in particular, Margaret’s Trust. The Deceased appointed both of them, jointly, from the outset. It does not follow logically that if one of Margaret’s siblings died, the Deceased would intend that Margaret’s only surviving sibling would be automatically removed as an executor and trustee of the Estate and no longer be involved in the administration of the Estate and attending to Margaret’s best interests. Instead, Margaret’s best interests would be entrusted solely to Margaret’s niece, Carol, who was, at the time the Will was prepared, and remains, a resident of British Columbia.

53Based on the record, the Deceased was not especially close to Carol. Although the Deceased travelled to British Columbia to attend Carol’s wedding in 2001, Anne Marie’s evidence is that the Deceased’s efforts to maintain contact with Carol were not reciprocated; and both prior to and after making the Will, the Deceased confided in Anne Marie that she did not want Carol to benefit from the Estate. The Will provides that Carol would only benefit under the Will if, at the time of Margaret’s death, Margaret were not survived by either William or Anne Marie. In that case, the remainder of Margaret’s Trust would be divided in equal shares per stirpes among the Deceased’s issue alive on Margaret’s death. Those issue could, potentially, include Carol and Robert.

54At the time the Deceased made the Will, Anne Marie was close to the Deceased and visiting the Deceased and Margaret regularly. Around the time of the Deceased’s death, Anne Marie was staying at the Residence with Margaret to support their mother during her last illness. Following the Deceased’s husband’s death, and prior to the Deceased making the Will, Anne Marie was assisting the Deceased and Margaret financially because they were under financial strain. The Deceased confided in Anne Marie regarding her estate planning, including the appointment of Anne Marie to ensure that Margaret would be looked after. Anne Marie’s evidence on this point was largely unchallenged. Given the Deceased’s close relationship to Anne Marie and her reliance on Anne Marie, including financially, it does not follow that the Deceased would have intended to remove Anne Marie as an executor and trustee, simply because Anne Marie’s co-executor and trustee, William, became unwilling or unable to act. It also does not follow that the Deceased would, in this event, replace Anne Marie with Carol alone. Carol never had any involvement in Margaret’s care and was not especially close to the Deceased or Margaret. It is much more likely that the Deceased intended Carol to act as the sole executor and trustee only in the event that both William and Anne Marie were unable or unwilling to act.

55Having reviewed the language used by the Deceased in the Will, and the surrounding facts and circumstances at the time the Deceased made the Will, I am satisfied that the Deceased intended that if William died before the administration of the Estate had been completed, Carol would be appointed in his place to act jointly with Anne Marie. I am also satisfied that it was not the Deceased’s intention to remove Anne Marie as an executor and trustee under these circumstances.

2. The Proper Interpretation of the Will Respecting the Distribution of the Residue of the Estate

56The following paragraphs of Article III of the Will address both the administration of the Residence and the residue of the Estate, as well as the distribution of the Estate, and the distribution of the remainder of Margaret’s Trust, to the beneficiaries.

57Paragraphs c) and d) of Article III deal with the administration of the Residence:

c) My daughter Margaret Elizabeth Bishop, as of the date of this my last will, resides with me at my house municipally known as 112 Bellman Avenue, Toronto. I hereby direct that should she be residing in my house, as of the date of my death that she may continue to reside there, until such time as she and my trustees determine that she should no longer reside there, on account of personal choice on her part and/or her state of health and or economic decisions, the estate must make. In which case my Trustees have the power and authority to sell my home, and to purchase alternate accommodations for my said daughter, or to sell the home and place the proceeds of same in the residue of my estate and distribute same forthwith after the sale according to the provisions of this my Will. ...

d) It is my hope that my daughter Margaret and my Trustees will be ad idem and agree on the decision relating to where she will live, but in the event that there is any dispute my Trustees shall have the authority and power to make whatever decision my Trustees deem advisable in their sole unfettered discretion. All expenses relating to the maintenance and upkeep of the residence my daughter resides in (until she no longer resides in a residence owned by my estate) are to be paid for by my estate, which expenses include but are not limited to insurance, utilities, maintenance, repair, upkeep, renovations, and taxes.

58Paragraphs e), f) and g) of Article III of the Will deal with the distribution of the residue of the Estate and the remainder of Margaret’s Trust on her death:

e) The residue of my estate is to be divided into 3 equal shares and distributed as follows:

1. One equal share is to be transferred and delivered to my daughter Anne Marie Veronica Inglis per capita;

2. One equal share is to be transferred and delivered to my son William Joseph Bishop per capita;

3. One equal share is to be held in trust for my daughter Margaret Elizabeth Bishop [trust terms omitted].

f) In the event that my son William Joseph Bishop and or my daughter Anne Marie Inglis die before their share of the residue of my estate is distributed to them then their share is to be divided equally between their surviving siblings and the proceeds which would be distributed to my daughter Margaret Elizabeth Bishop are to be held in trust for her according to the trust provisions outlined in clause III e) 3 of this my will.

g) In the event that my said daughter Margaret Elizabeth Bishop … should die while money is still remaining in trust for her, said monies are to be transferred and delivered to the beneficiaries of the other 2 shares in accordance to how those shares are distributed in clauses III e 1) and 2) of this my will. In the event that both Anne Marie Veronica Inglis and William Joseph Bishop are not alive at the death of my daughter Margaret Elizabeth Bishop then whatever remains in my estate is to be distributed to my issue in equal shares per stirpes.

Positions of the Parties

59Carol’s position is that the Will is ambiguous with regard to when the distribution of the residue of the Estate, including the Residence and any other Estate assets, is to occur. She submits that if the ambiguity cannot be resolved such that William’s one-third interest in the Estate vested in him during his lifetime, then the ambiguity should lead the court to declare that the condition subsequent set out in paragraph III f) should be struck as void for uncertainty. She contends that the result of such a declaration would be that the residue of the Estate would pass to the Deceased’s issue in equal shares per stirpes, in which case Carol and Robert would take William’s share as his heirs.

60Carol contends that it is unclear from the language of the residual clauses whether the Deceased intended that the Residence vest in the Deceased’s three children at the time of the Deceased’s death, whether the Residence automatically vested in them on the third anniversary of the Deceased’s death pursuant to the Estates Administration Act, R.S.O. 1990, c. E.22 (the “EAA”), or whether the Deceased intended to postpone the vesting until Margaret’s interest in the Residence, potentially a life interest, came to an end.

61Carol submits that the language of the residual provision refers to a single distribution, not multiple distributions. She further submits that this language suggests a vesting of the assets on the Deceased’s death (or within the year following the executor’s death, sometimes referred to as the “executor’s year”), or in so far as the Residence is concerned, a vesting on the third anniversary of the Deceased’s death, at the latest. The latter vesting would be in accordance with a vesting pursuant to s. 9 of the EAA. In each of these cases, all three of the Deceased’s children, including William, would have been alive at the time of distribution, and the beneficiaries of his estate, Carol and Robert, would then be entitled to the one-third share that vested in him. Carol submits that the Will should be interpreted such that a presumption of early vesting, or a vesting under section 9 of the EAA, should apply. Alternatively, she submits that the condition subsequent found in paragraph III f) should be found to be void for uncertainty.

62Section 9 of the EAA provides that real property not disposed of, conveyed to, divided or distributed among the persons beneficially entitled thereto within three years of the death of the deceased is, at the expiration of that period, thenceforth vested in the persons beneficially entitled thereto under the will.

63Margaret’s position is that no share of the Residence or Estate vested in William prior to his death. Margaret submits that because William died in 2016, before his share of the residue of the Estate was “distributed” to him, the one-third share that would have been distributed to him if he were alive at the time of the actual distribution is to be divided equally between Margaret’s Trust and Anne Marie. Margaret acknowledges that upon her death, the balance of Margaret’s Trust will be distributed in accordance with paragraph III g) of the Will, with the result that the entire remainder, if any, would be transferred to Anne Marie, if Anne Marie survives Margaret. Failing that, the remainder would be divided among the Deceased’s issue then alive, in equal shares per stirpes; that is, equally between Carol and Robert, if both of them are then alive.

64Anne Marie agrees with Margaret that no share of the Estate vested in William prior to his death. She submits that the presumption of an early vesting is rebutted in this case. Anne Marie disagrees with Carol that any part of the Will provisions dealing with the residue of the Estate is ambiguous. Anne Marie submits that the proceeds of sale of the Residence are to be divided between Anne Marie and Margaret’s Trust but that she is entitled to be reimbursed from Margaret’s share for the expenses that Anne Marie paid personally for Margaret’s benefit.

Legal Principles

65The same rules regarding the interpretation of Article II of the Will, as described above, apply to an interpretation of the residual provisions in Article III of the Will as well. If the Deceased’s intention cannot be discerned from the Will itself, resort may be had to the “armchair rule” whereby the Will may be interpreted in light of the surrounding circumstances known to the Deceased when she made the Will.

66Regarding an early vesting, in Ross, at para. 57, the Court of Appeal confirmed, with reference to Albert H. Oosterhoff et al., Oosterhoff on Wills, 8th ed. (Toronto: Thomson Reuters, 2016), at para. 17.3.2, that the law presumes that a testator intends for interests to vest at her death or at the earliest moment as is consonant with the terms of the will. At para. 58, the Court of Appeal states, with reference to Feeney’s Canadian Law of Wills at paras. 17.7 and 17.8: that like any presumption, it may be displaced by a finding regarding the actual intention of the testator reflected in her will:

The courts are inclined to hold a gift as vested rather than contingent whenever the particular words used, and the whole, admit of a construction that will result, as is said, in “early vesting”. That inclination has always been said to be particularly strong where the property is land, and that a gift that makes no reference to the time of vesting should always be held to take effect at the testator’s death, unless the date of vesting would disturb provisions already made in the will, or unless the will, as a whole, evinces a clear intention that the gift operates contingently and at a later date.

Analysis

Vesting of Estate Assets

67For the reasons that follow, I find that the Deceased did not intend an early vesting of the Residence, or the proceeds from the sale thereof, in Anne Marie, William and Margaret, each of whom was alive at the time of the Deceased’s death and on the third anniversary of her death. Based on the language used by the Deceased in the residual provisions of the Will, though not as precise as it might have been, it is clear that the Deceased did not intend that any child who died after her and prior to the end of Margaret’s interest in the Residence would receive an interest in the Residence or the proceeds of its sale. This conclusion is supported by a review of the specific terms of the Will, the Will as a whole, and by applying the “armchair rule.” I also find that a vesting pursuant to the EAA does not apply in this case in which the testator has expressed a contrary intention.

68Carol relies on Ross, at para. 58, in her assertion that a gift is usually presumed to vest early unless there is a clear intention to the contrary. She also relies on Lewis Pelicos, Executor and Trustee of the Estate of James Pelicos v. The Estate of Stelios Pelicos, 2019 ONSC 5304, at paras. 9-12, to support her argument that the residue of the Estate vests in the beneficiaries on the death of the Deceased notwithstanding an intervening life interest.

69Carol asserts that a one-third share of the Residence vested in William on the death of the Deceased notwithstanding Margaret’s right to reside in the Residence, potentially, for the rest of her life. Carol also asserts that it could not have been the Deceased’s intention that the distribution of the Estate be stalled for an indeterminate amount of time until Margaret no longer resided in the Residence or until the executor and trustee decided to distribute the proceeds of the sale of the Residence in accordance with the terms of the Will. Accordingly, she asserts that one-third of the Residence vested in William prior to his death in 2016, either based on the presumption of an early vesting at the time of the Deceased’s death, or as a result of a vesting under the EAA on the third anniversary of the Deceased’s death.

70Both Anne Marie and Margaret rely on Ross in their submission that the presumption of early vesting may be displaced by evidence of the actual intention of the testator as reflected in the Will.

71In drafting the Will, at paragraph III c), the Deceased first created a trust of the Residence for Margaret’s benefit. The terms of the trust allow the executor and trustee to sell the Residence, on terms, and replace it with another. Further, the Deceased gave the executor and trustee the power to sell the Residence, or a replacement residence, and directed the executor and trustee to place the proceeds “in the residue of my estate and distribute same forthwith after the sale according to the provisions of this my Will” (emphasis added).

72In paragraph III d) of the Will, the Deceased provided further direction regarding the Residence to be held for Margaret’s benefit. She stipulated that all expenses relating to the maintenance and upkeep of the Residence, so long as Margaret is residing there, “are to be paid for by my estate”, including but not limited to insurance, utilities, maintenance, repair, upkeep, renovations and taxes. This clause addresses Estate assets other than the Residence. Once the expenses of the Residence have been covered, the remaining assets, if any, would form part of the residue for distribution, after all Estate liabilities had been paid.

73In paragraph III e), the Deceased divided the residue into three equal shares: 1) one equal share for Anne Marie “per capita”; 2) one equal share for William “per capita”; and 3) one equal share for Margaret, to be held in Margaret’s Trust.

74Paragraph III f) includes a condition with respect to the distribution of a residual beneficiary’s share of the residue. This paragraph provides that if William and/or Anne Marie dies before their share of the residue is “distributed” to them, then their share is to be divided equally between their surviving siblings, and any “proceeds” which would be distributed to Margaret are to be held in trust for her according to the trust provisions outlined in paragraph e) 3 of the Will.

75Lastly, in paragraph III g) of the Will, the Deceased disposed of any “money” remaining in Margaret’s Trust on Margaret’s death by directing the “monies” to be delivered “to the beneficiaries of the other 2 shares in accordance to how those shares are distributed in clauses III e 1) and 2)”; that is, to Anne Marie “per capita” and to William “per capita.” The provision goes on to provide that if both Anne Marie and William are not alive at the time of Margaret’s death, “then whatever remains in my estate is to be distributed to my issue in equal shares per stirpes.”

76While the drafting of the Will could have been more precise, certain intentions of the Deceased are manifest. First, the Deceased did not intend for the issue of any of her children to benefit from the Estate unless none of her children were alive at the time monies remaining in the Estate were available for distribution. In addition, any distribution to be made to Anne Marie or William is to be made “per capita”, meaning “by head” or “per person”, to that individual who, alone, was intended to benefit, if alive. The Deceased did not choose the words “per stirpes”, which could have been construed to convey an intention to provide for a deceased child’s heirs. The Deceased anticipated the possibility that one or more of her children could die before receiving “their” distribution from the Estate. In that case, she provided that the distribution that would have been made to him or her, if alive, would be divided between the Deceased’s surviving children and not distributed to the issue of the deceased child or the deceased child’s estate. Each of these provisions militates against an early vesting of the Residence in the Deceased’s children at the time of her death or on the third anniversary of her death.

77In Deutschmann (Guardian ad litem of) v. Fallis, 2010 BCSC 952, 61 E.T.R. (3d) 143, the Supreme Court of British Columbia considered the entitlements of a residual beneficiary following a life interest in real property. It affirmed the principle set out in Minister of National Revenue v. Bickle, [1966] S.C.R. 479, at pp. 484-5: “It is not disputed that until the trusts under a will have been performed, a residuary beneficiary cannot put his hands on a specific piece of property and claim ownership with all the consequences of ownership.”

78In my view, the terms of the Will establish a contrary intention to an early vesting of the Residence and the proceeds from a sale of the Residence. In this case, the presumption in favour of early vesting has been rebutted.

79I agree with Carol’s assertion that at the time of the Deceased’s death (or within the executor’s year), William would have been entitled to a one-third distribution of Estate assets, other than the Residence, and other than Estate assets that were required to pay expenses relating to the Residence and any other liabilities of the Estate, if there were any such Estate assets. There is a dispute about the nature and extent of these assets, if any. The informal accounting that Anne Marie has provided respecting the Estate assets would suggest that there are no remaining Estate assets apart from the proceeds from the sale of the Residence, and that she is owed a considerable amount of money from the Estate for Estate expenses she paid personally. However, Anne Marie’s accounting has not been accepted by Carol and Margaret. If there were residual Estate assets in which William was entitled to a share at the time of the Deceased’s death but which were not distributed to him through an omission or error on the part of Anne Marie, acting as executor and trustee, then William’s share of those assets would be payable to his estate.

Condition Subsequent

80Carol submits that the language in paragraph III f) of the Will is ambiguous with regard to when a distribution of assets is to occur in accordance with the terms of the Will. She asserts that paragraph III f) creates a “condition subsequent on a residuary gift”, meaning that a child of the Deceased (William or Anne Marie) must be alive at the time “their share of the residue of my estate is distributed to them.” Carol asserts that this phrase is ambiguous and should be found to be void for uncertainty because the distribution of the residue of the Estate could take place at three different points in time. That is,

a) Estate assets, other than the Residence, which were not required to pay expenses relating to the Residence, ought to have been distributed to the residual beneficiaries listed in paragraph III e) of the Will within the executor’s year;

b) at the end of the third year following the Deceased’s death, the Residence could have been distributed to the residual beneficiaries pursuant to s. 9 of the EAA; and

c) the proceeds of sale of the Residence would be distributed to the beneficiaries entitled thereto at the end of Margaret’s interest in the Residence.

81Given these multiple, potential times of distribution, Carol asserts that the term “distribute”, as used in the Will, is ambiguous, and the condition subsequent is too indefinite and uncertain to enable the court to say what the testator meant by the phrase “distributed” in paragraph III f). Carol further asserts that the Will does not explain how paragraph III f) is to operate, and the Deceased’s intention regarding the distribution of the residue cannot be ascertained based on surrounding circumstances at the time she made the Will because there is no reliable extrinsic evidence on the point.

82Carol concludes that paragraph III f) should be found to be void for uncertainty. She asserts that the Deceased’s use of “per capita” in paragraph III e) is “confusing”, and she argues that the Deceased intended to gift an equal share to each of her children’s respective families. She bases this argument on the fact that when the Deceased made the Will, William had children and Anne Marie had stepchildren. Carol contends that the Deceased intended to use “per stirpes” instead of “per capita” in paragraph III e) because she intended to benefit her children’s families.

83Anne Marie and Margaret disagree with Carol’s interpretation of the residual paragraphs of the Will. They submit that there is no ambiguity regarding the distribution of the residue of the Estate. They further submit that the Will clearly evinces the Deceased’s intention that a child of hers would only benefit from a share of the Residence, including the proceeds of sale of the Residence, if that child were alive at the time of distribution. As such, a distribution of the proceeds of sale of the Residence would occur “forthwith after the sale according to the provisions of [the] Will.” The provisions would be those in paragraph III e), which provide for an equal distribution between Anne Marie and Margaret’s Trust because William died before his share of the Estate was distributed to him.

84I do not find the language regarding a distribution of the assets of the Estate in paragraph III f) to be ambiguous. The intention of the Deceased to limit distributions to her children alive at the time of the distribution is clear. If a child is not alive at that time, then his or her share is to be divided among the child’s “siblings” then alive, not the child’s children or family. This distribution scheme is consistent with the Deceased’s use of the words “per capita” in paragraph III e).

85I find that there is no basis in fact for Carol’s submission that the Deceased intended that the distributions in paragraph III e) would be “per stirpes” and not “per capita” because William had two children and Anne Marie had stepchildren. Further, there is no evidence to suggest that Anne Marie had adopted her stepchildren. As such, they would not benefit from a per stirpital distribution.

86More significantly, the surrounding circumstances at the time the Deceased made her Will reinforce the Deceased’s intention to distribute her Estate to her surviving children, at the specified time of distribution, in priority to any grandchildren or more remote issue. All of the Deceased’s children were close to her at the time of her death. William and Margaret were living with her. Anne Marie was assisting her financially and spending a lot of time with the Deceased when she was unwell prior to her death. The record shows that despite efforts to form a relationship with Carol, the Deceased was not close to Carol. There is no evidence to suggest that the Deceased was close to Robert. He is not mentioned in the Will. Anne Marie’s evidence is that the Deceased explained to Anne Marie, in discussions regarding her estate planning, that she intended that if Margaret were the only child who survived her, then the whole of the Estate would be set aside in trust for Margaret’s benefit. I acknowledge that Anne Marie’s evidence is hearsay and uncorroborated, but Carol does not dispute the truth of it. She asks the court to disregard it as self-serving. I find that Carol’s interpretation of the Will is not supported by the terms of the Will or the surrounding circumstances at the time the Deceased made the Will.

87Carol acknowledges that if the condition subsequent in paragraph III f) is not found to be void for uncertainty, a “distribution” of the proceeds of sale of the Residence would not result in a distribution to William’s estate or heirs. William was not alive when the Residence was sold, and the proceeds became available for distribution.

88In this case, Carol asserts that the court should invoke equity and direct that all of the proceeds of sale should form part of Margaret’s Trust, and Anne Marie should not be entitled to any share of the proceeds. Carol further asserts that such a ruling would appropriately prevent Anne Marie from being unjustly enriched. Carol alleges that Anne Marie exercised her discretion improperly in causing Margaret’s relocation from the Residence to the Apartment so the Residence could be sold. Carol asserts Anne Marie’s self-interest motivated her to make these arrangements because Anne Marie wanted to sell the Residence to realize her share of the proceeds. In doing so, Carol asserts that Anne Marie breached her fiduciary duty and became unjustly enriched as a result.

89Regarding Carol’s claims against Anne Marie for breach of fiduciary duty and unjust enrichment, I agree with Anne Marie’s submission that these claims were not pleaded by Carol. I decline to consider them as part of Carol’s claim.

3. Anne Marie’s Requirement to Pass Accounts as the de facto Executor and Trustee of the Estate from April 1, 2009 to Present

90Carol submits that Anne Marie should be ordered to pass her accounts as the de facto executor and trustee of the Estate from April 1, 2009 to present. Anne Marie does not dispute that she acted as the executor and trustee of the Estate and that William did not take an active role.

91Margaret also submits that Anne Marie should be ordered to pass her accounts, and that no distribution should be made to Anne Marie, including any amount for compensation, until her accounts have been passed.

92The duty to account is a core duty of an executor and trustee, and an executor and trustee may be compelled to pass his or her accounts at the request of any person with an interest in the property of the Deceased. Carol is a contingent beneficiary of the Estate. If Anne Marie should predecease Margaret and there are assets remaining in Margaret’s Trust at the time of Margaret’s death, Carol and Robert—if both of them were then alive—would share equally in the residual Estate. Accordingly, they have a financial interest in the Estate and are entitled to be served on an application to pass accounts.

93Anne Marie has made a claim for a number of expenses that she incurred personally for the benefit of the Estate or Margaret, as well as a claim for executor’s compensation. The accounting that Anne Marie has provided to Carol and Margaret, which forms part of the record, is inadequate and does not include vouchers in support of expenses that Anne Marie allegedly incurred. Carol asserts that Anne Marie has not accounted for all of the Estate assets, and that at least $18,000 remains unaccounted for. Margaret alleges Anne Marie has failed to maintain accurate records of her administration and that the beneficiaries have not been able to fully assess whether she has made errors and omissions that resulted in loss to the Estate. The beneficiaries of the Estate have also not had an opportunity to properly assess Anne Marie’s claim for reimbursement from the Estate.

94In order to determine whether Anne Marie has properly accounted for her administration of the Estate and whether she is entitled to reimbursement for expenses and for compensation, Anne Marie will need to pass her accounts from April 1, 2009 to the present. It is appropriate that Anne Marie be ordered to serve and file her notice of application to pass accounts within ninety days of these reasons.

B. MARGARET’S APPLICATION

95The issues in Margaret’s Application, which are not included in Carol’s Application, are as follows:

1. Did Anne Marie have the authority to cause Margaret’s removal from the Residence without Margaret’s consent?

2. Should Anne Marie be removed as an executor and trustee of the Estate?

3. Is Margaret entitled to receive a capital contribution to Margaret’s Trust equal to the value of a life interest in the Residence, or dependant’s support from the Estate, and if so, in what amount?

Positions of the Parties

96Margaret submits that she was dependent on the Deceased for shelter and financial support during the Deceased’s lifetime, including at the time of the Deceased’s death. Margaret further submits that the Deceased’s undisputed intention was to provide for Margaret by leaving her a life interest in the Residence, the expenses of which would be paid by the Estate. Margaret submits that this intention was defeated by Anne Marie, who unilaterally and arbitrarily caused Margaret to relocate from the Residence to the Apartment. This move resulted in financial losses to Margaret and the Estate.

97Margaret seeks an order placing $950,000 from the Estate into Margaret’s Trust, which would represent either a) the equivalent of her life interest in the Residence of which she has been unjustly deprived; or b) her dependant support claim, and such amount would also include Margaret’s one-half interest in the residue of the Estate.

98Anne Marie submits that she believed that she had authority to relocate Margaret and that the move was necessary. Anne Marie further submits that she should not be removed as an executor and trustee of the Estate because she did not act in bad faith.

99Anne Marie also submits that Margaret was not a dependant of the Deceased at the time of the Deceased’s death and that Margaret’s application should be dismissed.

Anne Marie’s Evidence

100Under cross-examination, Anne Marie admitted that when the Deceased instructed Mr. McLellan regarding the Will, the Deceased advised him that her central concern was Margaret’s ongoing care. Anne Marie also deposed that the Deceased intended to provide in the Will that even if the Deceased, Anne Marie and William predeceased Margaret, Margaret would be able to rely on a trust containing the entirety of the Estate, and that the Deceased intended that Margaret’s Trust, being a Henson trust, would not impede Margaret’s ability to continue to be eligible to receive ODSP benefits and the Canada Pension Plan (“CPP”) benefit. Anne Marie also deposed that the Deceased had told Anne Marie that Anne Marie was to look after Margaret’s Trust and that the Deceased trusted Anne Marie to do the best she could for Margaret.

101Anne Marie deposed that Margaret’s welfare weighed heavily on the Deceased’s mind. Even during her final illness in 2009, the Deceased would express this concern, and Anne Marie would reassure the Deceased that she would take care of Margaret.

102On her decision to sell the Residence, Anne Marie deposed that Margaret was “absolutely against selling”, and that because Margaret did not want to sell, Anne Marie, alone, made the decision.

103Anne Marie deposed that Margaret’s move to the Apartment was necessary because the Residence was no longer safe given Margaret’s mobility issues and reliance on a scooter and a rollator walker. She also deposed that Margaret was becoming less mobile and that the Residence had too many stairs.

104Anne Marie also deposed that she confirmed her decision regarding the necessity of Margaret’s move with a registered nurse with 18 years’ experience. Anne Marie had been concerned about Margaret’s safety. The registered nurse, a friend of Anne Marie, assessed Margaret’s condition and home environment and concluded that the Residence was no longer safe due to Margaret’s mobility issues. However, in cross-examination, Anne Marie resiled from this statement and conceded that no formal assessment had been undertaken and that the nurse had paid Margaret a social visit, during which she made an informal assessment. This visit took place at the Apartment and not at the Residence. Anne Marie also conceded she did not consult with any paid professional regarding Margaret’s safety or mobility either before or after her move to the Apartment. Anne Marie agreed that she did not obtain professional advice on whether modifications could have been made to the Residence to allow Margaret to remain there safely on a long-term basis.

105Anne Marie also deposed that the Residence was becoming a financial burden for her by 2019 and that the Residence, being older, would likely require more work. However, the documentary evidence that Anne Marie produced demonstrated that there had not been any material change in the expenses to maintain the Residence in 2019, and no extraordinary expenses had arisen since 2016. Anne Marie conceded that she did not consider mortgaging the Residence to ease her own financial burden that arose from personally paying the expenses related to the Residence.

106Anne Marie admitted to some self-interest in deciding to sell the Residence. She deposed that, in addition to her regard for Margaret’s safety, she felt that she ought to be entitled to make better use of her own finances for her own benefit as opposed to paying the expenses of the Residence, which were payable by the Estate.

Margaret’s Evidence

107Margaret deposed that it was common knowledge within the family that the Deceased wanted Margaret to continue to live in the Residence for as long as she liked, and that the Estate would pay the expenses of the Residence. Margaret understood that she would be able to live at the Residence for her lifetime or until she needed to move into a long-term care facility.

108Margaret deposed that she had not seen Carol since Carol’s wedding in 2001. She reached out to Carol and Robert in 2019 “in panic and desperation” when Anne Marie was considering a sale of the Residence.

109Margaret testified that when Anne Marie decided that the Residence would be sold, Margaret felt blindsided and devastated. She told Anne Marie that she did not want to move and that she would not move. Margaret deposed that she understood from Carol and Robert that they could not prevent the move because Anne Marie was acting as the executor and trustee. Ultimately, Margaret acquiesced to the move when she believed that she had no choice. She found the move to be traumatic. Margaret deposed that she felt like she had lost her home of over 60 years as well as a community of neighbours and friends, which had been her support system.

110Margaret deposed that in 2019, the Residence was unencumbered and generating income of $800/month. The income was subsidizing Margaret’s life interest and fulfilling the Deceased’s goals. Anne Marie’s accounting shows that between 2009 and 2019, the housing costs to be borne by the Estate totaled $55,121.84, being property taxes and insurance. All other costs were covered by rental income and Margaret’s income. By contrast, from 2019 to 2021, the Estate incurred costs of $61,727.79 for Margaret’s rent alone, not including rental insurance, utilities, upkeep and insurance.

111Margaret deposed that her income (from ODSP and CPP) barely covers her monthly bills, the cost of groceries, and other living expenses each month. She has no extra income for extraordinary expenses and no savings for an emergency. She borrowed $2,100 to replace her scooter, without which she would be housebound.

1. Anne Marie’s Authority to Cause Margaret’s Removal from the Residence Without Margaret’s Consent

112Margaret submits that the Will does not give the executor and trustee the authority to remove her from the Residence without her consent. I agree.

113In my view, the language at paragraph III c) of the Will is clear with regard to Margaret’s participation in any decision about her moving from the Residence. The Deceased included a direction: “I hereby direct that should [Margaret] be residing in my house, as of the date of my death that she may continue to reside there, until such time as she and my trustees determine that she should no longer reside there, on account of personal choice on her part and/or her state of health and or economic decisions, the estate must make” (emphasis added). It is clear that the Deceased intended that Margaret would have a say in when she would no longer reside in the Residence (whether it be her personal choice, or based on her state of health, or for economic reasons).

114Paragraph III c) goes on to state “In which case [meaning both Margaret and the trustees have made the determination] my Trustees have the power and authority to sell my home, and to purchase alternate accommodations for my said daughter, or to sell the home and place the proceeds of same in the residue of my estate and distribute same forthwith after the sale according to the provisions of this my Will.” The meaning of this direction is also clear. Once a mutual determination has been made, then the trustees have the authority to sell the Residence and to purchase alternate accommodations for Margaret.

115It is undisputed that Margaret was not part of the decision that caused her to move out of the Residence and, in fact, she strongly opposed it. Giving the words used by the Deceased their plain meaning, they cannot be interpreted to mean that Anne Marie had the authority to unilaterally determine when Margaret should no longer reside in the Residence.

116Anne Marie asserts that Margaret’s move from the Residence was necessary based on Margaret’s state of health and for economic reasons. Regardless of whether these reasons were valid, Margaret was entitled, together with the trustees, to “determine that she should no longer reside” in the Residence. I accept Margaret’s evidence that there was no formal or proper assessment of Margaret’s mobility issues for the purposes of determining that the Apartment, as opposed to the Residence, would better suit her needs. Anne Marie conceded this point. I can appreciate that Anne Marie could have legitimately perceived that there were sound economic reasons for Margaret’s move from the Residence to the Apartment. Based on the record, the Estate had little liquidity. The Residence was the main asset, and Anne Marie was using her own funds to finance expenses relating to the Residence. However, there is no evidence that Anne Marie explained these economic circumstances to Margaret, so that they could jointly decide whether it was time for Margaret to relocate. Anne Marie admitted that she did not consider options to create liquidity, such as a mortgage or reverse mortgage of the Residence.

117I accept Anne Marie’s submission that she did not act in bad faith. She interpreted the Will to mean that she had the authority, as executor and trustee, to make the decision regarding Margaret’s move from the Residence if the move was necessary because of Margaret’s state of health or for economic reasons that “the estate must make.” She was mistaken in her belief that the executor and trustee alone could make the decision for economic reasons, or any other reason. I do not accept Carol’s submission that Anne Marie was motivated by her desire to expedite the payment of one-half of the net proceeds of sale of the Residence to herself as a residual beneficiary. I do accept that Anne Marie was tired of personally subsidizing the maintenance and upkeep of the Residence. She admitted this under cross-examination.

118Anne Marie was not mistaken that the trustees had some authority to make unilateral decisions regarding Margaret’s accommodation. However, those decisions were limited to where Margaret would live, if there was a disagreement between Margaret and the trustees on that point. However, this decision would only be made once Margaret and the trustees had mutually decided that Margaret would move from the Residence. In paragraph III d), the Will states: “It is my hope that my daughter Margaret and my Trustees will be ad idem and agree on the decision relating to where she will live, but in the event that there is any dispute my Trustees shall have the authority and power to make whatever decision my Trustees deem advisable in their sole unfettered discretion” (emphasis added).

2. Anne Marie’s Removal as an Executor and Trustee

119Margaret submits that Anne Marie should be removed as an executor and trustee for her breach of fiduciary duty, inability to maintain an even hand, and improper management of the Estate that resulted in losses.

120The Trustee Act, R.S.O. 1990, c. T.23 gives the court jurisdiction to remove trustees for actions or inactions including misconduct; inability to act with impartiality due to hostility between the trustee and the beneficiaries such that continued administration of the trust is impossible or improbable; inability or unwillingness to carry out the terms of the trust; personally benefitting from the trust; acting to the detriment of the beneficiaries; or any other ground that shows the trustee is not fit to control another’s property: St Joseph’s Health Centre v. Dzwiekowski, at paras. 25-30, and Rose v. Rose (2006), 81 O.R. (3d) 349 (S.C.), at paras. 70-76.

121Margaret submits that she is not confident that Anne Marie will act in Margaret’s best interest going forward. Past conduct that is likely to continue will often be sufficient to justify removal: Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74 (Ont. S.C.), at paras. 106-113.

122As noted, I find that Anne Marie misinterpreted the Will and the scope of her authority as an executor and trustee. This error led to negative consequences for Margaret. Margaret would no longer have the rental income from the Residence to supplement her own income, and she would move away from her lifelong home and the supportive community from which she and the Deceased had benefited for many years. The latter consequence is not easily rectified in the context of this application. There is no evidence to suggest that the Residence, or another residence in that community, could be purchased for Margaret, or that such a strategy would be a financially viable one. The economic consequences to Margaret of Anne Marie’s action can be addressed in the context of Margaret’s plea for dependant’s relief. Because Anne Marie and Margaret’s Trust are equal beneficiaries of the residue of the Estate, Anne Marie’s share of the Estate would be reduced by the quantum of Margaret’s support that exceeds Margaret’s fifty per cent share of the residue of the Estate. No other beneficiary or contingent beneficiary of the Estate would be negatively affected by the reduction to Anne Marie’s share.

123At this point in the proceeding, it cannot be determined whether Anne Marie, qua executor and trustee, is responsible for other errors or omissions in the administration of the Estate or breaches of fiduciary duty. Anne Marie has not yet provided a comprehensive accounting of her administration. Anne Marie will need to bring an application to pass her accounts. Once that application has been heard, the court will be in a position to assess whether Anne Marie’s actions or inactions render her unfit to continue as a co-executor and trustee with Carol. Accordingly, I adjourn the determination of whether Anne Marie should be removed as an executor and trustee until the application for passing of accounts is finally disposed of.

3. Margaret’s Entitlement to Receive a Capital Contribution to Margaret’s Trust Equal to the Value of a Life Interest in the Residence, or Dependant’s Support from the Estate

124Margaret submits that she is entitled to a capital contribution to her trust in an amount equivalent to the value of her life interest in the Residence; that is, the cost of her shelter-related expenses that would have been borne by the Estate if she had remained in the Residence. Margaret submits that this amount should form a first charge on the net proceeds of sale and should be credited to Margaret’s Trust prior to any further distribution of the residue.

125The Will gives the executor and trustee the option to distribute the proceeds of sale of the Residence as residue, or to purchase alternative accommodation for Margaret. Under cross-examination, Anne Marie declined to say whether she would consider purchasing another residence for Margaret. Margaret has not submitted that she would like another residence to be purchased for her benefit.

126Margaret calculates the equivalent benefit to a life interest in the Residence to be $598,968.72. She arrives at this figure by adding 12 months of rent ($26,122.32), 12 months of hydro ($684), and 12 months of laundry services ($1,716) for a total of $28,522.32. She then multiplies $28,522.32 by Margaret’s estimated life expectancy (21 years), based on an average life expectancy for females of 85 years.

127Margaret submits that housekeeping services of $1,300 annually should be added to the $598,968.72 as part of maintenance and upkeep expenses to be borne by the Estate. Margaret then applies a one per cent cost-of-living increase to arrive at a grand total of $663,015.70 without housekeeping, or $693,046.70 with housekeeping. Margaret submits that Margaret’s Trust should receive this capital amount in addition to her one-half interest in the residue of the Estate, for a total of $950,000.

128Alternatively, Margaret claims that she was dependent on the Deceased at the time of the Deceased’s death and is therefore entitled to support pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). Margaret calculates that support, in addition to her one-half interest in the Estate, to be $950,000. Margaret submits that the court can either award Margaret the equivalent of her life interest in the Estate or appropriate dependant’s support based on her current tenancy in the Apartment.

129Anne Marie submits that Margaret was not a dependant of the Deceased but was self-sufficient at the time of the Deceased’s death.

Legal Principles

130Section 58 of the SLRA provides that where the deceased has not made adequate provision for the proper support of dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

131Section 57 of the SLRA provides that “dependant” means, (a) the spouse of the deceased, (b) a parent of the deceased, (c) a child of the deceased, or (d) a brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

132Section 58 of the SLRA requires an assessment of whether the deceased has made adequate provision for the proper support of his or her dependants.

133If the deceased has made inadequate support, the court will be guided by the relevant factors set out at s. 62(1) of the SLRA in determining the amount and duration of the support to be paid. The court may also direct other evidence to be given as it considers necessary or proper: SLRA, s. 62(2).

134Section 58(4) of the SLRA provides that the adequacy of provision for support is to be determined as of the date of the hearing.

Analysis

135Margaret, being a child of the Deceased, meets the first branch of the test. This is undisputed.

136On the evidence, I also find that the Deceased was, immediately before her death, providing support to Margaret. Up until the Deceased’s death, Margaret always lived with the Deceased in the Residence. While they were living together, the Deceased provided Margaret with a house in which to reside, transportation to and from Margaret’s job, laundry services, groceries, meal preparation, and pocket money. The Deceased and Margaret shared housekeeping responsibilities at the Residence.

137I reject Anne Marie’s submission that the Deceased and Margaret lived together as roommates, each of whom contributed to the expenses of the Residence and its maintenance. The record shows that Margaret did not pay rent to the Deceased and made only modest contributions to the household from her ODSP and employment income, when she could. By far, the lion’s share of the expenses of their shared living at the Residence was borne by the Deceased from her resources, with help, from time to time, from Anne Marie. The second branch of the test is therefore also met.

138The third branch of the test requires the applicant to show that the Deceased did not make adequate provision for the dependant’s support. Section 62 of the SLRA provides legislative guidance through enumerated factors for the court to consider in determining the adequacy of the support. In considering the factors, I find that Margaret has also met this test.

139In examining what constitutes adequate or proper support, the courts have identified that the provision made by the deceased must not only be adequate today, but also adequate in the future. Clause 62(1)(b) directs the court to consider the assets and means that the dependant is likely to have in the future. Generally, in determining the amount and duration of the support, the court will consider all of the applicant’s circumstances.

140Further, in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, a case involving support for a spouse and children, the Supreme Court of Canada recognized that provision for dependant support encompasses more than basic needs and maintenance. The Supreme Court observed that it can also include moral obligations and stated, at p. 822, that “most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.”

141In Cummings v. Cummings (2004), 69 O.R. (3d) 397 (C.A.), at para. 50, the Court of Appeal for Ontario, citing Tataryn, held that when examining all of the circumstances of an application for dependant support, the court must consider a) what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and b) what moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.

142The word “support” in the SLRA extends that meaning to include what might be considered by some people to be non-essentials or luxuries: Re Davies (1979), 27 O.R. (2d) 98 (Surr. Ct.), at para. 15.

143In determining adequate support for a dependant, no one factor is determinative, and the court may look to the vulnerability of the applicant as a factor: Quinn v. Carrigan, 2014 ONSC 5682, 377 D.L.R. (4th) 101 (Div. Ct.), at para. 141.

144The Will is clear in so far as it provides for Margaret’s shelter. The provision respecting the Residence permits the executor and trustee to provide a roof over Margaret’s head, whether the Residence or a replacement residence, until Margaret and the trustees determine that Margaret should no longer live there. The Will also provides that the expenses of any such residence shall be borne by the Estate. The Will does not expressly address the situation in which Margaret currently finds herself. She is now a tenant with a monthly rent obligation and responsibility to pay for utilities, insurance, and all other living expenses.

145Margaret’s Trust is entitled to one-half of the net proceeds from the sale of the Residence, and one-half of other residual assets, if any. Whether there are any other residual assets seems doubtful given that Anne Marie has been personally subsidizing the Estate to pay expenses related to the Residence, Margaret’s rent, and other expenses. However, the answer to this question should emerge when Anne Marie passes her accounts.

146Margaret submits that one-half of the net proceeds of the sale of the Residence net of Estate liabilities, is inadequate support. In addition to housing, Margaret submits that the Deceased was, at the time of her death, providing Margaret with food, transportation, housekeeping, laundry services, and spending money, and that Margaret was and continues to be dependent on that support. Margaret further submits that she is now entering her senior years and that she has some permanent disabilities, which make her vulnerable. Accordingly, she will require additional support from the Estate to permit her to live independently for as long as possible.

147Regarding her request for additional support attributable to her age and disabilities, Margaret relies principally on a report from a physiotherapist, Stacey Baboulas. In the report, Ms. Baboulas made a number of recommendations for Margaret, including periodic physiotherapy assessments, occupational therapy, case management services, assistive equipment, aid and devices, attendant care services as she ages, housekeeping services, and resources to replace electronics and appliances over time. Ms. Baboulas’ report states that 2021 preliminary costs would range from $9,682 to $10,651. Projected costs from 2022 onward would range from $32,000 to $40,000, annually.

148Ms. Baboulas’ report is not an expert’s report tendered in accordance with the Rules of Civil Procedure, R.R.O 1990, Reg. 194. Rather, it was attached as an exhibit to Margaret’s affidavit in support of her application. It was only after the first day of this two-day hearing that Margaret’s counsel arranged for Ms. Baboulas to sign an Acknowledgement of Expert’s Duty. The Acknowledgement was then served and filed on March 8, 2022. These steps were taken after Margaret had made her submissions in support of her application at the hearing.

149Anne Marie asserts that the court cannot give any weight on Ms. Baboulas’ report because it was not tendered as an expert report in accordance with the Rules of Civil Procedure, and Anne Marie was not given the opportunity to cross-examine Ms. Baboulas on her report. I agree. I cannot rely on Ms. Baboulas’ report.

150Margaret asserts that even if I cannot rely on Ms. Baboulas’ report, I can make common sense findings relating to Margaret’s likely future needs and means by applying the factors set out in s. 62 of the SLRA.

151In applying those factors, I find that Margaret’s current assets and means, including the share of the residue of the Estate directed to be transferred to Margaret’s Trust, will not be adequate to support her modest lifestyle, if she lives an average lifespan.

152Margaret currently receives $1,149.64 per month from ODSP and CPP. She has no other assets of value. Given her disabilities, it is unlikely that she could find employment. She will turn 65 years of age later this year and her ODSP income supports will likely be replaced by Old Age Security (OAS) and possibly a Guaranteed Income Supplement (GIS) and a Guaranteed Annual Income System (GAINS) payment. It is not expected that Margaret’s income will improve materially over time. It is more likely than not that Margaret’s health issues will result in her need for further services, equipment or replacement of equipment, home improvements and assistive devices in the future.

153Based on the record, Margaret’s standard of living is modest. Her monthly expenses (rent, hydro, telephone, TV, laundry services, groceries, medication, Wheeltrans and Lifeline service) are approximately $3,400 per month. When weighed against her income from ODSP and CPP, there is a shortfall of approximately $2,251 per month, or $27,012 per year. Currently, Margaret is relying on Anne Marie to pay Margaret’s rent of $2,176.86, and Margaret anticipates that Anne Marie will seek reimbursement for this cost from the share of the proceeds of sale of the Residence payable to Margaret’s Trust.

154It is not realistic to expect that Margaret can make up this shortfall, even with the benefit of Margaret’s Trust, which is entitled to one-half of the residue of the Estate.

155Margaret’s dependence on the Deceased was lifelong. They enjoyed a close, loving relationship and shared a common interest in pets, hobbies, their neighbourhood and their community. Margaret deposed that she considered the Deceased to be her best friend.

156There is no evidence to suggest that the Deceased had any other dependant at the time of her death.

157Margaret asserts that Anne Marie has not provided a complete and accurate accounting of the Estate assets. However, Margaret contends that there is at least $1,261,031.06, being the proceeds from the sale of the Residence, available to fund her claim for dependant’s support.

158Margaret asserts that the court should order the executor and trustee of the Estate to establish Margaret’s Trust and to fund it with $950,000 on account of dependant’s support.

159In my view, the record does not support an award of $950,000 as dependant’s support for Margaret. Instead, I would direct the executors and trustees to establish Margaret’s Trust and to fund it with $725,000 composed of Margaret’s entitlement to one-half of the residue of the Estate and an additional amount to provide for her ongoing support.

160I arrive at this level of support as follows. Margaret submits that her monthly expenses are approximately $3,400 per month, including rent, hydro, laundry services, telephone, cable, groceries, medication, transportation and Lifeline services. At the time of the Deceased’s death, the Deceased was providing Margaret with rent-free housing and paying for or contributing significantly to Margaret’s hydro, laundry, cable, and grocery costs. The Deceased was also providing transportation and housekeeping services for Margaret. The Will evinces the Deceased’s intention that the Estate would be responsible for maintenance and upkeep of the Residence (including, but not limited to insurance, utilities, maintenance, repair, upkeep, renovations and taxes). It is reasonable to conclude that the Deceased intended and envisaged that the Estate would cover these accommodation-related expenses for Margaret for as long as Margaret was incurring them, whether from the Estate, while it owned a residence in which Margaret was living, or from Margaret’s Trust, once the residence had been sold and the sale proceeds of sale distributed.

161On Margaret’s list of monthly expenses, I note that she did not include insurance for the apartment (which Anne Marie is now paying), housekeeping services, or loan repayments for her scooter. Including an amount for these items, I use $3,600 per month as a conservative, current estimate of Margaret’s monthly expenses. Her monthly income, whether ODSP benefits and CPP or CPP/OAS/GIS/GAINS is likely to be approximately $1,150 (not including any income from Margaret’s Trust). The result is a monthly shortfall of approximately $2,450, or $29,400 annually. Over her lifetime, assuming she lives to the age of 85 years, the shortfall would be $617,400.

162Simply covering the shortfall would not likely result in adequate support. Margaret will almost certainly incur additional expenses, including capital expenses, over the next 20 years or so. It is foreseeable that Margaret may need to pay for repairs and improvements at her residence, modifications to her residence to accommodate her evolving needs, appliance and furniture replacement, the purchase or replacement of assistive devices such as a scooter and a rollator walker, and other unforeseen expenses that could arise as a result of her age or vulnerability, such as personal care expenses or medication. Accordingly, I would add $107,600 (approximately $5,000 per year) to the shortfall amount of $617,400 for a total of $725,000 as dependant’s support, inclusive of the entitlement to Margaret’s Trust of one-half of the residue of the Estate.

163In my view, this amount provides adequate support to Margaret from the Deceased’s Estate, without which Margaret would be unable to support herself for the rest of her life. I find that this award meets the Deceased’s legal and moral obligations to Margaret.

164From this amount, the executors and trustees shall be permitted to deduct expenses incurred by Anne Marie, personally, on Margaret’s behalf, in respect of Margaret’s accommodation at the Apartment, or in respect of Margaret’s support following the sale of the Residence. However, such expenses must be proven on Anne Marie’s passing of accounts, or accepted by the executor and trustee, other than Anne Marie, if she is acting in that role.

165The proceeds of sale from the Residence shall be charged with this dependant’s support award of $725,000. Once this amount, less any deduction for Anne Marie’s proven expenses, has been paid to Margaret’s Trust, and once Anne Marie’s application to pass her accounts has been finally disposed of, the net proceeds of sale, subject to any liabilities of the Estate, generally, shall be paid to Anne Marie in satisfaction of her share of those proceeds. To the extent there are other assets or funds that fall into the residue of the Estate, those assets or funds shall be distributed by the executors and trustees in accordance with paragraph III e) of the Will.

Conclusions

166I conclude as follows:

1. For the time being, the executors and trustees of the Estate are Anne Marie and Carol.

2. William’s estate is entitled to a one-third share of the assets comprising the residue of the Estate, if any, other than the Residence, which were available for distribution to the beneficiaries of the Estate within the executor’s year.

3. The proceeds from the sale of the Residence vested equally in Anne Marie and Margaret’s Trust on the sale of the Residence, subject to the liabilities of the Estate, including Margaret’s claim for dependant’s support.

4. Anne Marie shall be required to bring an application to pass her accounts for the period from April 1, 2009 to the date of these reasons within 90 days hereof.

5. Margaret is entitled to a capital contribution to Margaret’s Trust in the amount of $725,000 to be paid from the net proceeds from the sale of the Residence, subject to any amount owing to Anne Marie for proven expenses incurred by Anne Marie, personally, on Margaret’s behalf, in respect of Margaret’s accommodation at the Apartment or in respect of Margaret’s support following the sale of Residence. The capital contribution is in satisfaction of Margaret’s dependant’s support claim and the interest of Margaret’s Trust in one-half of the net proceeds of sale of the Residence.

6. Subject to the payment of the Estate’s liabilities, the distribution to William’s estate of Estate assets that vested in William at the time of the Deceased’s death, if any, and the capital contribution to Margaret’s Trust, the remaining net proceeds from the sale of the Residence shall be transferred to Anne Marie once her application to pass her accounts has been finally disposed of.

7. The residue of the Estate, other than the net proceeds from the sale of the Residence, if any, shall be divided equally between Anne Marie and Margaret’s Trust.

Costs

167Success on both Carol’s Application and Margaret’s Application has been divided. Each of Carol and Margaret was successful in obtaining some but not all of the relief she sought. Anne Marie was successful in defending some but not all of the allegations brought against her in Carol’s Application and in Margaret’s Application. The parties are strongly encouraged to agree on the matter of costs. If they cannot agree, Carol and Margaret shall serve and file written costs submissions not exceeding three pages in length (not including a Bill of Costs or Costs Outline and offers to settle, if any) within 14 days of these reasons. Anne Marie shall serve and file similar written costs submissions within 14 days thereafter. Reply submissions may only be made with leave.

Dietrich J.