COURT FILE NO.: ES-997-12
DATE: 2013-09-19
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Myrna Winnifred Vitale, Applicant
and
Joanne Martin, Estate Trustee of the Estate of Salvatore Vitale,
and in her personal capacity, Filippo Vitale and Giuseppina Vitale, Respondents
COUNSEL: Asad Saji, for the Applicant
M. Jasmine Sweatman, for the Respondent, Joanne Martin, Estate
Trustee of the Estate of Savlatore Vitale and in her personal capacity
Fabio Gazzola, for the Respondents, Filippo Vitale and Giuseppina Vitale
COURT FILE NO.: ES-716-12
AND RE: Joanne Martin, as Estate Trustee of the Estate of
Salvatore Vitale, Applicant
and
Myrna Winnifred Vitale, Lisa Howard, Christina Wigle,
Michael Vitale, Michael Legere, Carole Cardoso, Fillippo
Vitale Jr., Tyler Martin, Joshua Martin, Marcel Raymond,
Girard a.k.a. Marcal Raymond, Donnie Ellison, Filippo Vitale,
and Giuseppina Vitale, Respondents
COUNSEL: M. Jasmine Sweatman, for the Applicant
Asad Saji, for the Respondents, Myrna Winnifred Vitale, Lisa Howard,
Christina Wigle and Michael Vitale,
Fabio Gazzola, for the Respondents, Filippo Vitale and Giuseppina
Vitale
HEARD: August 19, 2013
ruling on TWO MOTIONS
by the honourable mr. justice r.d. reilly
[1] There are in fact two applications pending and two motions before the court related to each of those applications. All issues relate to the estate of Salvatore Vitale, who passed away on May 2, 2012. On the 17th of January 2013, the Honourable Mr. Justice G. Campbell directed an order that the applications in both court files be “tied together” and tried consecutively or otherwise as the court may order. Thus, both motions were heard together and my ruling relates to both motions.
[2] The relief in each of the two applications may be summarized as follows:
In Court File No: ES-997-12, Myrna Vitale seeks dependant’s relief.
In Court File No: ES-726-12, Joanne Martin, the estate trustee of Salvatore Vitale’s estate has brought an application for directions with respect to the estate.
[3] Myrna Vitale was the wife of the deceased, Salvatore Vitale, for some 24 years. Her application for dependant’s relief was issued on November 15, 2012. Salvatore Vitale’s Last Will and Testament is dated December 14, 2011.
[4] Myrna Vitale takes the position that Joanne Martin, the estate trustee, has depleted assets of the estate and should be held to account for her conduct and her decisions made throughout these proceedings. Accordingly, Myrna Vitale seeks to have Joanne Martin pass her accounts expeditiously and has made it clear she will be contesting some of those accounts.
[5] Filippo Vitale and Giuseppina Vitale are the parents of the deceased, Salvatore Vitale. Giuseppina Vitale received $148,963.24 from the estate, comprised of life insurance and RRSP/LIRAs. These were paid out to her in May, June and July of 2012. Giuseppina Vitale and her husband, Filippo Vitale, opened a joint bank account to deposit these funds. A considerable portion of these funds have already been expended by Mr. and Ms. Vitale, in part, it is claimed, to pay their legal fees. Although the evidence is unclear, it appears that something slightly in excess of $60,000 remains of these funds. Myrna Vitale, the widow of the deceased pleads that these are “Section 72 funds” (Succession Law Reform Act). Apparently, on March 12, 2013, previous counsel for Filippo Vitale and Giuseppina Vitale advised that the remaining funds were being held in trust by their law firm, Matlow, Miller, Cummins & Thrasher LLP.
The Applications and Motions
[6] By her application in File No: ES-726-12, Joanne Martin, as estate trustee of the estate of Salvatore Vitale, seeks (inter alia) the following relief:
(i) that the property known municipally as 38 Chalmers Street, Cambridge, Ontario (the Cambridge property) shall be listed for sale at market value by the estate trustee, with the assistance of a licensed real estate agent within 30 days of the date of such direction;
(ii) that the Cambridge property be sold and that the net proceeds be paid to the estate;
(iii) that the property (the Flamborough property) shall be listed for sale at market value by the estate trustee, with the assistance of a licensed real estate agent within 30 days of the date of such direction;
(iv) that the Flamborough property be sold and that the net proceeds be paid to the estate;
(v) that the property located in Camden, New York, U.S.A. (the New York property) shall be listed for sale at market value by the estate trustee, with the assistance of a licensed real estate agent within 30 days of the date of such direction;
(vi) that the New York property be sold and that the net proceeds be paid to the estate;
(vii) that all necessary directions regarding the listing and sale of the Cambridge property, the Flamborough property and the New York property be given;
(viii) that the applicant, Joanne Martin, be given immediate access to the Cambridge property to prepare an inventory, an assessment of the value of the household items and personal property belonging to the deceased;
(ix) an order that all papers, records and documents and the computer which Salvatore kept at the Cambridge property be provided to Joanne forthwith;
(x) that the respondents, Myrna Winnifred Vitale, Lisa Howard, Christina Wigle and Michael Vitale shall vacate the Cambridge property within 30 days of the date of the hearing of the matter herein;
(xi) in the alternative, should Myrna, Lisa, Christina, Michael, or any or all of them continue to occupy the property after 30 days of the date of such direction, they shall further
(a) cooperate fully with the reasonable requests of the real estate agent with regard to access to the property and requirements for presentation;
(b) not interfere with access to the property by Joanne, which access shall be for the purpose of assisting with the sale of the property and removing the personal and household items and vehicles of the deceased to storage or for distribution;
(c) be prepared to vacate the property on as little as two weeks’ notice should this be a condition of any potential purchase of the property;
(d) shall pay use and occupancy rent to the estate in the amount of $350 per week, while they or any of them continue to occupy the property;
(xii) that Myrna, Lisa, Christina or Michael or any of them be required to pay use and occupation rents for the property from the date of death of the deceased to the date they vacate the property;
(xiii) that the musical equipment, both Hyundai and Toyota motor vehicles, all terrain vehicle, red trailer and the black trailer be sold by a licensed auctioneer (the personal property) and that the proceeds of such sale be paid to the estate;
(xiv) that any tenant residing at the Cambridge property shall pay all rental payments to the estate and that any rental payments received by Myrna from the date of death to the date of direction shall be paid to the estate.
[7] The application further requested that all motor vehicles belonging to the estate currently in the possession of Myrna, Michael, Christina or Lisa, be given to Joanne forthwith and that Myrna, Michael, Christina or Lisa cease all use and operation of the said motor vehicles.
[8] The application further pleaded that the estate trustee (Joanne) be permitted to borrow funds using any of the Cambridge property or the Flamborough property as security in order to pay debts, taxes, funeral expenses, legal and accounting expenses of the estate.
[9] The application further pleaded that the proceeds of the Manulife Performax insurance policy in the amount of $13,664.54 payable to Myrna Vitale, be paid into court pending resolution of any application brought by Myrna for equalization of net family property pursuant to the Family Law Act for dependant’s relief in accordance with the Succession Law Reform Act. Corollary relief was also sought.
[10] By her motion, the estate trustee seeks the following:
(i) that the Cambridge property be listed for sale at the complete discretion of the estate trustee;
(ii) that Myrna vacate the Cambridge property within 30 days of the order;
(iii) that the tenant vacate the Cambridge property upon being given 30 days notice by mail;
[11] By her motion, the estate trustee further seeks that the proceeds of such sale be used as following:
(i) the first charge shall be to pay the income taxes owed by the deceased;
(ii) the second charge shall be to pay the remaining funeral costs;
(iii) the third charge shall be to pay the legal fees of the estate trustee;
(iv) the fourth charge shall be to pay compensation to the estate trustee;
(v) the fifth charge shall be to pay all remaining estate expenses, including any expenses associated with disposing of the property in New York and attending to the administration of the estate if the proceeds at some stage become insufficient to pay all or then remaining estate expenses on a pro rata basis;
(vi) any amount retaining shall be distributed in accordance with the residue clause of the Will after the clearance certificate is received from Canada Revenue Agency.
[12] By her motion, the estate trustee pleads essentially the same relief as in her application. She further pleads that Myrna Vitale pay use and occupation costs to the estate in the amount of $650 per month from August 1, 2012 until she vacates the Cambridge property. She further pleads that Myrna provide a complete accounting to the estate trustee of all rent payments by the tenant on the Cambridge property in respect of his tenancy since June 1, 2012 and that “Myrna” remit all rent payments she has received from the tenant from June 1, 2012 to the date of the hearing of this matter. Further, she seeks an order that the tenant make all rent payments from the date of the order until he vacates his rental unit at the Cambridge property to the estate of Salvatore Vitale.
[13] She further seeks an order that Myrna Vitale locate and provide the estate trustee all property which belonged to Salvatore Vitale prior to his death, including an enumerated list of items. As well, she seeks that Myrna account for the proceeds of sale of the silver Hyundai she sold, as well as all other property Salvatore had an interest in and which she disposed of.
[14] I now turn to the amended, amended, notice of application filed by Myrna Vitale dated July 4, 2013. By this application, she seeks:
(i) an order that such provisions of this court considers adequate be made out of the estate of the deceased, Salvatore Vitale, with the proper support of the applicant;
(ii) an order for interim support pending adjudication of the application for support;
(iii) Section 72 funds under the Succession Law Reform Act received by the respondents, Filippo Vitale and Giuseppina Vitale in the amount of $148,963.24 be transferred by the respondents within seven days of the date of this order to the law office of Sweatman Law Firm, counsel for the estate trustee, or to the law offices of Fabio Gazzola, to be held in trust, pending determination of the dependant’s relief application and/or pending further order of this court;
(iv) the respondents, Giuseppina Vitale and Filippo Vitale, shall provide an accounting and proof of section 72 funds spent to date, including copies of invoices and receipts.
[15] By her motion, Myrna Vitale seeks:
(i) an order that section 72 funds under the Succession Law Reform Act received by the respondent, Giuseppina Vitale, in the amount of $148,963.24 be transferred by the respondents, Giuseppina Vitale and Filippo Vitale, to the law firm of Sorbara Schumacher McCann LLP, counsel for the estate trustee to be held in trust, within seven days of the date of this order, pending determination of the defendant’s relief application and/or pending an order of the court;
(ii) an order that the respondents, Giuseppina Vitale and Filippo Vitale provide an accounting and proof of section 72 funds spent to date, including copies of invoices and receipts;
(iii) an order that the applicant, Myrna Vitale, be entitled to interim dependant’s support pursuant to section 64 of the Succession Law Reform Act pending determination of the dependant’s relief application and/or pending an order of the court, as follows:
(a) Myrna Vitale shall continue to receive tenant income at 38 Chalmers Street, Cambridge, Ontario in the amount of $640 per month;
(b) counsel for the estate trustee, Sorbara Schumacher McCann LLP shall be permitted to transfer $650 per month from section 72 funds held in trust on account of occupation rent and towards payment of the mortgage, taxes and insurance on 38 Chalmers Street, Cambridge, Ontario.
(iv) an order that pursuant to the application for directions in Court File No.: ES-726-12 and pursuant to rule 75.06 of the Rules of Civil Procedure, the respondent estate trustee shall pass her accounts with respect to the estate of Salvatore Vitale by:
(a) applying to pass her accounts on or before June 1, 2013; and
(b) by providing her accounting and passing form on or before June 1, 2013 and that the registrar shall file a copy of this order in Court File No.: ES-726-12.
[16] By her motion, Myrna Vitale seeks principally to remain in residence at 38 Chalmers Street, Cambridge, Ontario and that she continue to receive $640 per month in rent from the tenant at the premises.
[17] The principal issues before the court which regrettably may have to be resolved at trial will be Myrna Vitale’s claim for dependant’s relief and specifically for her claim as against “Section 72 funds” that have been received by other beneficiaries of Salvatore Vitale’s estate. These are issues that regrettably may have to be resolved by a trial judge after hearing real evidence in the case.
The Background of the Litigation
[18] I shall only attempt to summarize the events leading up to this litigation. Details (in some cases conflicting) are fully set out in the many affidavits filed on the motion. The applicant/wife (on one of the applications), Myrna Vitale, was the wife of Salvatore Vitale, the deceased. Her birth date is June 14, 1944. Her husband Salvatore was born on December 18, 1959. His date of passing, as noted above, was May 2, 2012. He was 52 years of age at the time of his death. Myrna and Salvatore married on January 30, 1988. They moved into the Cambridge property (the matrimonial home) on the same day. Myrna has testified “by affidavit” that they did not separate any time during their 24 year marriage. Myrna had three children from a previous marriage noted as litigants in this matter. They are Christina Wigle, Lisa Howard and Michael Vitale. None of the children at the time of Salvatore’s death resided at the matrimonial home.
[19] Dealing with the other litigants and beneficiaries of Salvatore’s Will, Michael Legere, was a friend of Salvatore’s. Joanne Martin (the estate trustee) and Carole Cardoso are Salvatore’s sisters. Filippo Vitale Jr. is Salvatore’s brother. Tyler and Joshua Martin are minor children of Tom and Joanne Martin. Marcel Raymond Girard a.k.a. Marcal Raymond was Salvatore’s friend. Donnie Ellison was also a friend of Salvatore. Myrna Salvatore currently works as a banquet server, approximately two times per month. She is also in receipt of CPP and OAS benefits in the amount of approximately $860 per month. Myrna Salvatore was a joint owner of the matrimonial property until 1999 when her name was removed from title according to her affidavit evidence, to shield the property from credit card debt, which she had incurred.
[20] In or around 1999, Salvatore was disabled from working full time at a work place accident and was receiving CPP disability and WSIB disability benefits, with an approximate income of $33,000 per year. Myrna now has some significant health problems and pleads that she is required to depend upon her dependant’s relief application under the Succession Law Reform Act.
[21] Myrna Vitale received the “matrimonial home” in Salvatore’s Will, together with her children, Lisa Howard, Christina Wigle and Michael Vitale. Apparently, Lisa, Christina and Michael are all prepared to waive any claims they might have to the matrimonial home if Myrna can settle the other issues with the responding parties.
[22] I shall not go into the plethora of affidavit evidence that has been submitted on this motion, much of which is considerable conflict. Salvatore’s parents, Filippo and Giuseppina Vitale, take the position that from the time Salvatore suffered his industrial accident until the time of his death (10 years or more) he lived with them, that they were his principal caregivers and that he and Myrna were effectively living separate and apart. Myrna Vitale takes a very different position. She maintains (by her affidavits) that while Salvatore may have spent some time with his parents in their home, that she and Salvatore remained married and living in the matrimonial home. These are issues that may have to be resolved to the extent that they may have some impact (however indirect) on the dependant’s relief application of Myrna Vitale.
[23] It is impossible for me to resolve these issues on these interim motions for relief. There are many issues that have to be resolved by the trial judge over and above a determination of the credibility of the affidavits or their affiants who have been placed before the court. There are many other issues that require the attention of a trial judge, including the limitation issue that may apply to a Ssction 72 application. I note as well a provision of the marriage contract that has been submitted by the parties. Section 4 of that marriage contract provides:
In the event of the death of one of the parties hereto, it is acknowledged and agreed that the surviving spouse shall not have the right to make an election whether to receive an entitlement pursuant to the Succession Law Reform Act, as amended, or the Will, if there is one, or to receive the entitlement provided under Section 5 of the Act as if they had separated prior to the death. Each party agrees that they accept their entitlement under a Will, if there is one, or under the Succession Law Reform Act, if there is no Will, and, except for the rights expressly provided for here, each of Sam and Myrna hereby releases and discharges all claims and rights that he or she has or may have under the laws of any jurisdiction against the other and the estate of the other and in particular, in the Province of Ontario under the Act and the Succession Law Reform Act, or any successor legislation thereto, including any claims and rights to an amount representing the equalization of their net family properties.
[24] I express no opinion with respect to the impact of such term. It may or may not be an issue to be resolved by a trial judge.
[25] I now turn briefly to the Succession Law Reform Act itself.
The Succession Law Reform Act
[26] The Succession Law Reform Act provides as follows:
58.(1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his 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 one of them.
60.(1) An application under this Part may be made to the court by notice of application in accordance with the practice of the court.
61.(1) Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.
(2) The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
62(1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,
(a) the dependant’s current assets and means;
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the dependant’s age and physical and mental health;
(e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(g) the proximity and duration of the dependant’s relationship with the deceased;
(h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
(l) the circumstances of the deceased at the time of death;
(m) any agreement between the deceased and the dependant;
(o) the claims that any other person may have as a dependant;
(r) if the dependant is a spouse;
(i) a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
(ii) the length of time the spouses cohabited,
(iii) the effect of the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(s) any other legal right of the dependant to support, other than out of public money;
(2) In addition to the evidence presented by the parties, the court may direct other evidence to be given as the court considers necessary or proper.
(3) The court may accept such evidence as it considers proper of the deceased’s reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased.
63.(1) In any order making provision for support of a dependant, the court may impose such conditions and restrictions as the court considers appropriate
(2) Provision may be made out of income or capital or both and an order may provide for one or more of the following, as the court considers appropriate,
(a) an amount payable annually or otherwise whether for an indefinite or limited period or until the happening of a specified event;
(b) a lump sum to be paid or held in trust;
(c) any specified property to be transferred or assigned to or in trust for the benefit of the dependant, whether absolutely, for life or for a term of years;
(3) Where a transfer of assignment of property is ordered the court may,
(a) give all necessary directions for the execution of the transfer or assignment by the executor or administrator or such other person as the court may direct; or
(b) grant a vesting order.
(4) An order under this section may be made despite any agreement or waiver to the contrary.
64 Where an application is made under this Part and the applicant is in need of or entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court the court may make such interim order under section 63 as it considers appropriate.
68.(1) Subject to subsection (2), the incidence of any provision for support ordered shall fall rateably upon that part of the deceased’s estate to which the jurisdiction of the court extends.
(2) The court may order that the provision for support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to the court seems proper.
- The court may give such further directions as it considers necessary for the purpose of giving effect to an order.
[27] Section 75.06, subsection (1) provides that any person who appears to have a financial interest in an estate may apply for directions or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.
[28] Suffice to say the matter is now before the court. In terms of the task of a trial court judge, I need only refer further to section 72 of the Succession Law Reform Act. Section 72 provides:
72.(1) Subject to section 71, for the purpose of this Part, the capital value of the following transactions effected by a deceased before his or her death, whether benefitting his or her dependant or any other person, shall be included as testamentary dispositions as of the date of the death of the deceased and shall be deemed to be part of his or her net estate for purposes of ascertaining the value of his or her estate, and being available to be charged for payment by an order under clause 63 (2) (f),
(a) gifts mortis causa;
(b) money deposited, together with interest thereon, in an account in the name of the deceased in trust for another or others with any bank, savings office, credit union or trust corporation, and remaining on deposit at the date of the death of the deceased;
(c) money deposited, together with interest thereon, in an account in the name of the deceased and another person or persons and payable on death under the terms of the deposit or by operation of law to the survivor or survivors of those persons with any bank, savings office, credit union or trust corporation, and remaining on deposit at the date of the death of the deceased;
(d) any disposition of property made by a deceased whereby property is held at the date of his or her death by the deceased and another as joint tenants;
(e) any disposition of property made by the deceased in trust or otherwise, to the extent that the deceased at the date of his or her death retained, either alone or in conjunction with another person or persons by the express provisions of the disposing instrument, a power to revoke such disposition, or a power to consume, invoke or dispose of the principal thereof, but the provisions of this clause do not affect the right of any income beneficiary to the income accrued and undistributed at the date of the death of the deceased;
(f) any amount payable under a policy of insurance effected on the life of the deceased and owned by him or her;
(f.1) any amount payable on the death of the deceased under a policy of group insurance; and
(g) any amount payable under a designation of beneficiary under Part III.
(2) The capital value of the transactions referred to in clauses (1) (b), (c) and (d) shall be deemed to be included in the net estate of the deceased to the extent that the funds on deposit were the property of the deceased immediately before the deposit or the consideration for the property held as joint tenants was furnished by the deceased.
(3) Dependants claiming under this Part shall have the burden of establishing that the funds or property, or any portion thereof, belonged to the deceased.
(5) This section does not prohibit any corporation or person from paying or transferring any funds or property, or any portion thereof, to any person otherwise entitled thereto unless there has been personally served on the corporation or person a certified copy of a suspensory order made under section 59 enjoining such payment or transfer.
(6) Personal service upon the corporation or person holding any such fund or property of a certified copy of a suspensory order shall be a defence to any action or proceeding brought against the corporation or person with respect to the fund or property during the period the order is in force.
The Consideration of the Court
[29] I have carefully considered the copious material, including the numerous affidavits submitted by the parties, together with the submissions of counsel. I am mindful that these are interim motions seeking temporary relief pending the careful consideration that a trial judge will have to apply to these sensitive and very contentious issues. I am mindful of the acrimonious relationship that exists and has existed between Myrna Vitale and at least some of the members of the family of Salvatore Vitale, her husband. Based upon the many contradictory affidavits that have been filed and the somewhat complex legal issues that have been raised, it is impossible for me to resolve these issues based upon the summary motions. They cry out for either a resolution by the parties or the determination by a trial judge. I would point out to the parties that while there is a significant financial amount involved in this litigation, a good portion thereof would be quickly consumed by several days of trial. I speak now of many unrecoverable costs. I would strongly encourage the parties to do their best to resolve this litigation if at all possible, failing which there will be a trial of these issues, most specifically Myrna Vitale’s claim for dependant’s relief and her claim against the “Section 72” funds. Pending resolution by agreement or trial of these issues, I direct as follows:
(i) Joanne Martin, estate trustee of the estate of Salvatore Vitale shall expeditiously apply to pass her accounts, which accounts shall be passed on or before the 29th of November 2013 or on such other date as the parties may agree upon in cooperation with the trial coordinator. Given the plethora of documents which have been filed on these motions, there should be no problem for the parties in preparing to deal with this issue. Subject to the parties’ wishes, I suggest a full day be set aside for the passing of accounts.
(ii) These two applications should be dealt with by a trial of all the issues. I am directing an expeditious trial of all issues to be held on or before the 22nd of February 2014 or such other date as the parties may agree upon in consultation with the trial coordinator. I would again remind the parties that a trial of all these issues could be an expensive undertaking in terms of unrecoverable costs, whatever the outcome may be. I would hope that common sense might prevail and that compromise could result in settlement to avoid an acrimonious, lengthy and expensive trial.
(iii) Pending settlement or further court order, Myrna Vitale shall have the right to occupy 38 Chalmers Street South in Cambridge as her principal residence. She shall henceforth be solely responsible for maintenance and costs of the home, including taxes, utilities, etc.
(iv) Myrna Vitale shall also have the right to receive the rent from any tenant of a portion of those premises. There shall be no right on the part of the trustee of the estate of Salvatore Vitale to dispose of that residence pending resolution of these issues or further court order.
(v) Joanne Martin, the estate trustee of the estate of Salvatore Vitale shall have the right to dispose of any other real property which forms a portion of the estate of Salvatore Vitale at her discretion, with an obligation to account for the proceeds of such disposition required by the court.
(vi) I am advised that something in excess of $60,000 is currently in a lawyer’s trust account against which Myrna Vitale brings a claim pursuant to section 72 of the Succession Law Reform Act. I am directing that at least $60,000 of those funds be held in a solicitor’s trust account, not to be depreciated pending Myrna Vitale’s application in this regard. Any funds in excess of this amount may be dispensed to the estate trustee, Joanne Martin, and used for her administration of the estate. This is without prejudice to Myrna Vitale’s right to pursue her claim for dependant’s relief with respect to the entire proceeds received by Giuseppina Vitale.
(vii) All other issues are adjourned for determination by the trial judge, unless resolved by agreement between the parties.
[30] If counsel are unable to agree with respect to costs of this application, they may make brief written submissions to me in chambers, within 30 days of publication of this ruling.
[31] I wish to commend counsel on their thorough preparation of the considerable material filed on these motions.
R.D. Reilly J.
Released: September