Mikichak Estate (Re), 2013 ONSC 6659

SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 232/12
Date: 20131028

In the Matter of the Estate of Rita Helen Mikichak, deceased

RE: Paul Francis Mikichak (Objecting Person) Applicant

and

Peter Anthony Mikichak (Estate Trustee) Respondent

Before: Seppi J.

Counsel:
N.K. Dhaliwal, counsel for the Objecting Person

Patrick G. Morris, counsel for the Estate Trustee

ENDORSEMENT

[1]

Background

This is an application for the passing of accounts in the estate of Rita Helen Mikichak, deceased, who died on February 18, 2009, (“the Estate”). The deceased was the mother of three sons, Peter, Paul and Andrew Mikichak, all of whom are beneficiaries and trustees pursuant to her Will. A fourth beneficiary is Mathew Mikichak, her grandson.

2The deceased loaned various sums of money to all the beneficiaries during her lifetime and after the death of her husband, Nicholas Mikichak on June 30, 2002 The balance of the loans outstanding, plus accrued interest to each, are properly shown as assets of the estate on the date of her death in the total amount of $395,634.68. These are comprised of the following amounts:

Outstanding to:

Amount

Peter Mikichak

$ 137,310.89

Paul Mikichak

$119,549.40

Andrew Mikichak

$133,125.45

Mathew Mikichak

$5,648.94

3All of these loans were made to each beneficiary between the father and the mother’s dates of death, apparently as part of the estate planning.

4During her lifetime the deceased placed her money in joint accounts with her oldest son, Peter Mikichak. The court accepts Mr. Mikichak’s evidence that this was done for ease of paying and managing his mother’s banking and expenses, which function was performed mainly by him. The plan was also to avoid delays, fees and freezing of accounts upon the mother’s death. On the death of Rita Mikichak, these joint funds in the total amount of about $26,819.90 would have lawfully passed to Peter Mikichak by right of survivorship. As the deceased was of sound mind until the date of her death the only logical and reasonable inference for these arrangements is that she trusted her son, Peter Mikichak, to carry out her wishes regarding these funds. Pursuant to these wishes, the joint funds have been accounted for in the total assets of the estate to be distributed in accordance with her Will.

[5]

Objections and Analysis

In his application requiring the passing of accounts, and subsequent Notice of Objection to Accounts, the applicant, Paul Mikichak, challenged certain transactions made by the two other co-executors, Peter and Andrew Mikichak. This led to the filing of a detailed statement of accounts of the Estate on behalf of the two other co-executors, Peter and Andrew Mikichak, on or about July 30, 2013, for the period February 18, 2009 to December 5, 2012.

6Paul Francis Mikichak’s notice of objection to accounts lists 11 items of dispute, plus objection to the compensation claimed. Having examined and reviewed the accounts and affidavits filed, and upon hearing the submissions on behalf of the parties, I find the objections are without merit. All relevant supporting documents sufficient to prove the accounts, receipts, and disbursements from the date of death have been proven to the satisfaction of this court. There is no dispute from the other beneficiaries regarding receipt of funds as shown, nor regarding the balance of the loans owing on the date of death. The deceased was competent until the date of her death and there was no complaint about the assistance of Peter Mikichak regarding her expenses or accounts during her lifetime.

7There is no evidence of risky loan transactions having been given by the estate, as alleged. Loans advanced during the lifetime of the deceased have been particularized as to the dates, amounts, and names of the beneficiaries who have received these loans, including and accounting for accrued interest. Paul Mikichak is a co-executor and trustee of the estate, and his claim that he was not allowed to participate is not supported by the evidence. Where the majority of executives (two of the three) elected to follow certain procedures there is no basis for objection after the fact. His suspicions about the Estate being mismanaged are not supported by any reliable evidence.

8The debts outstanding as of the date of death are clearly listed. The objector’s complaints about interest charged are not supported in the accounts or any other evidence. The joint funds held by Peter and Rita Mikichak on the date of her death have been fully accounted for. In summary there is no impropriety in the manner in which the funds of the estate were held and have been accounted for, having regard to the right of the deceased to manage her funds as she saw fit during her lifetime, and the accounting after her death. All complaints and objections regarding loans, transfers, calculations and alleged inconsistencies have been answered to the satisfaction of the court.

9Fees shown as prepaid to the estate trustee, and reimbursement of his disbursements and expenses incurred during the course of the management of the estate are fair and reasonable. The compensation claimed is fair and reasonable in the circumstances of this estate.

[10]

Disposition

In the result, the notice of objection is found to be without merit. The accounts, as passed, are approved. An order will go according to the usual terms to that effect. Compensation claimed by the estate trustee, Peter Mikichak is allowed in the amount of $11,466.51.

[11]

Costs

Submissions on costs of the contested hearing, if not settled, may be made by telephone conference to be scheduled by the trial office, at counsel’s request, not later November 7, 2013.

Seppi J.