Reid Martin v. Reid

Indexed as: Reid Martin v. Reid

Antoinette Reid and George Reid, Applicants and Dawn Cheryl Reid Martin, Respondent

Ontario Divisional Court

Southey, Matlow, Swinton JJ.

Judgment: March 22, 1999

Docket: Newmarket 49343/98

I.M. Hull, for Applicants/Respondents in Appeal.

Ms. S. Healey, for Respondent/Appellant/Cross-Applicant.

The judgment of the court was delivered by Southey J. (orally):

1 Counsel has referred us to conflicting articles by academics and by leading practitioners in the estate law field as to the correct interpretation of s. 6(8) of the Family Law Act. It is our view that the correct interpretation of that section, applying the words of the section and giving them their ordinary meaning, is that a surviving spouse who has been named as an executor in the will of a deceased spouse and who elects to take his or her share under the Family Law Act rather than under the will cannot be the executor of the estate because the will is to be interpreted as though that executor had predeceased the testator.

2 It follows from this interpretation of s. 6(8) that Antoinette Reid cannot be an executor of the estate of her late husband. Even if that is not the correct interpretation of s. 6(8), we do not think that Antoinette Reid and George Reid should be appointed as estate trustees to the exclusion of the appellant, Dawn Reid Martin, hereinafter referred to as Dawn. It is clear from the Reasons for Judgment of the learned judge below that there is a conflict between Dawn and Antoinette Reid and George Reid. We agree entirely with his assessment of the situation in which he rejected the idea of appointing Dawn as well as the other two because that would be just an invitation to chaos in the administration of this estate. However, if Dawn is to be left out, then in our view the preferable course is to appoint an independent executor to administer this estate and, accordingly, we rule that National Trust Company should be appointed as the sole executor of the estate of John Howard Reid.

3 The appeal then will be allowed, and the judgment of Marchand J. shall be varied by replacing Antoinette Reid and George Phillip Reid with National Trust Company Limited as estate trustee.

4 After considering the conditions imposed by National Trust in respect to their appointment as estate trustee, we invited counsel for the appellants and the respondent to reach agreement on the person to be appointed as sole estate trustee and expect to receive representations, hopefully joint representations, within the next day or so in which there will be an agreement as to the estate trustee. At that time I suggest we also hear your representations as to costs here and below, and we will hope that there can be agreement on that as well.

5 An order will go requiring the estate trustees appointed by Marchand, J. to pass their accounts up to the point at which they accept the new estate trustee assumes responsibility.

Appeal allowed.