SUPERIOR COURT OF JUSTICE

Court File No.: 5223/11
Date: 2012-01-16

ONTARIO

SUPERIOR COURT OF JUSTICE

In the Matter of the Estate of Eleanor Veronica McCarvell, Deceased

RE: Eleanor Ann Kar, Applicant.

and:

James Dennis McCarvell, William Joseph McCarvell and Judith Marie Stocki., Respondents .

BEFORE: McDermid, J.

COUNSEL:
J. D. Skinner, for the Applicant.

L. F. Farrell, for the Respondent, James Dennis McCarvell.

William Joseph McCarvell, appearing in person.

No one appearing for Judith Marie Stocki.

HEARD: January 16, 2012.

Application under rule 14.05(3) of the Rules of Civil Procedure and Sections 5 and 37 of the Trustee Act. R.S.O. 1990, c. T.23 .

ENDORSEMENT

[1] This is an application for the removal of the Estate Trustees James Dennis McCarvell and William Joseph McCarvell. Their mother died testate on December 2, 2004 appointing them as her Estate Trustees.

[2] The estate assets comprise a home, which was sold in 2006 and yielded approximately $160,000, now held in trust, and about $5,000 in cash deposited in an estate bank account. Neither the testatrix's final tax return or any estate tax returns has been filed. Nothing has happened with respect to distributing this uncomplicated estate among the four children of the testatrix, who are her beneficiaries and the parties to this application, notwithstanding that the estate assets could not be more liquid and that over five years have elapsed since they were realized.

[3] It is clear from the material filed and the submissions of counsel and Mr. William McCarvell that there is a great deal of tension and animosity between the Estate Trustees to the point that a state of paralysis has resulted, which has prevented the distribution of the estate among the beneficiaries that should have been a very straightforward procedure. Each blames the other for the failure to complete the distribution. This has led to potential costs to the beneficiaries and an unwarranted withholding of their respective distributive shares in the estate.

[4] Ms. Farrell has no objection to removing William McCarvell but suggests that the failure to distribute is not the fault of her client and that James McCarvell should continue to act as sole estate trustee.

[5] Should the Estate Trustees be removed, neither counsel nor William McCarvell has any objection to the appointment of Daniel Jerome McNamara to act as a Succeeding Estate Trustee.

[6] I have no hesitation in finding that this situation cannot continue. To permit that to happen would put the welfare of the beneficiaries at further risk and prevent the trust from being properly executed. The remaining issue is whether only one, rather than both, of the Estate Trustees should be removed.

[7] Each of the Estate Trustees has alleged that the other is to blame for the failure to complete the distribution and to administer the estate properly. It is difficult to assess credibility from affidavits, even though William McCarvell appeared in person to make his submissions. However, I find that there has been fault on both sides and a failure to compromise and reach sufficient common ground on various issues to permit the distribution to be completed.

[8] Accordingly, an order will go to remove the existing Estate Trustees. Although the testatrix's two daughters were named as alternate trustees, neither of them has sought to be appointed as a Succeeding Estate Trustee. Therefore, Daniel Jerome McNamara shall be appointed as the Succeeding Estate Trustee according to the terms contained in his Consent to act as Succeeding Estate Trustee dated September 28, 2011, found at Tab 3 of the application record.

[9] The existing Estate Trustees, James Dennis McCarvell and William Joseph McCarvell shall pass their accounts as Estate Trustees of the Estate of Eleanor Veronica McCarvell within 60 days.

[10] Ms. Farrell seeks an order that legal expenses incurred by her client in the sum of $4389.94 be paid from the Estate. I leave this issue to be determined on the passing of accounts.

[11] If the parties are unable to agree, they may make submissions in writing, not to exceed five pages, about the costs of this application within 30 days. At the end of that time, I shall make an order based on the material before me.

“Justice D.R. McDermid”

Mr. Justice D. R. McDermid

Date: January 16, 2012.