Court of Appeal for Ontario

Date: March 31, 2017 Docket: C62397

Judges: Simmons, Lauwers and Hourigan JJ.A.

In the Matter of the Estate of Carl Merner Dare, Deceased

Between

Carla Dawn Leverette Woolnough Applicant (Appellant)

and

Graham Neal Dare and Bryan Robert Dare, personally and in their capacities as the Estate Trustees of the Estate of Carl Merner Dare Respondents (Respondents in Appeal)

Counsel

For the Appellant: C. David Freedman and Ian M. Hull

For the Respondents: Kelly Charlebois

Hearing and Decision

Heard and released orally: February 9, 2017

On appeal from: The judgment of Justice D.A. Broad of the Superior Court of Justice, dated June 20, 2016.

Endorsement

[1] The application judge dismissed the appellant's request for an order removing the named executors and trustees of the deceased's will. The appellant is one of eight grandchildren of the deceased. The eight grandchildren are the residual beneficiaries under the deceased's will. The respondent executors and trustees are the deceased's two sons. Their sister, the deceased's only other child, is the appellant's mother.

[2] In our view, this appeal must be dismissed. The Muskoka property, which the appellant said she was interested in purchasing, has now been sold. On our review of the record, the evidence does not support the appellant's claims that the respondents will not treat her fairly or that they have acted in breach of a fiduciary duty. Moreover, we see no basis for concluding that the respondents will not act with an even hand.

[3] The respondents honoured their father's non-binding request to permit the appellant and her family to remain in occupation of the Muskoka cottage for two summers following his death. The respondents' inquiries about the contents of the cottage were legitimate. The Cayman Island trust does not form part of the deceased's estate and the appellant's assertions in relation to it are no more than speculation.

[4] While there is friction between the respondents and the appellant's mother, the appellant has not established any basis for concluding that the respondents will not act with an even hand. As the application judge observed, the deceased was well aware of the tensions that existed but, nonetheless, named the respondents as executors and trustees in his will. Without more, the mere existence of friction or tension between an estate trustee and a beneficiary does not justify removal of the trustee.

[5] We see no basis for granting leave to appeal costs.

[6] The appeal is therefore dismissed. Costs of the appeal are to the respondents payable by the appellant fixed in the amount of $16,000 inclusive of disbursements and applicable taxes.

J. Simmons J.A. P. Lauwers J.A. C.W. Hourigan J.A.