COURT FILE NO.: 13-28366

DATE: 20140327

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary Parson and Beverley Houghtby, Estate Trustees with a Will of the Estate of Margaret Edith McGovern

Applicants

– and –

Hugh McGovern Jr.

Respondent

COUNSEL: Gail S. Nicholls, for the Applicants Helmut R. Brodmann, for the Respondent

HEARD in Ottawa: February 7, 2014

REASONS FOR DECISION

R. Smith J.

1This motion raises the issue of whether the Court should order the Estate Trustees to make an interim distribution of substantially the whole of the Estate, namely $381,245 to each of the two beneficiaries, before they have passed their accounts The parties are proceeding with a contested passing of accounts and there is ongoing litigation between them in Small Claims Court.

2The respondent, Hugh McGovern Jr., a one-half beneficiary of the Estate of Margaret McGovern (the “Estate”), has brought a motion asking the Court to order the Estate Trustees to make a further interim distribution of $381,145.29 to both beneficiaries, leaving $100,000 remaining in the Estate.

3Mr. McGovern Jr. also seeks an order that a) he be paid interest on the amount of his interim distribution from Mary Parson’s one-half share; and b) that Mary Parson pay him for the costs he has incurred to finance his new house from her one-half share.

4Mary Parson is the respondent’s sister; one of the Estate Trustees, and also a half-interest beneficiary in the Estate. The other Estate Trustee is Beverly Houghtby, who worked as a legal assistant for the beneficiaries’ late father. The Estate Trustees have decided not to make any further interim disbursement, until they have passed their accounts. Mr. McGovern Jr. has objected to the accounts as presented by the Trustees, and in particular the Trustees’ claim for compensation of $72,699 plus HST, based on their alleged negligent handling of the sale of his mother’s residence.

Background Facts

5The late Margaret Edith McGovern died on October 21, 2011. In her will dated November 30, 2008, she appointed her daughter Mary Parson and her husband’s former legal assistant Beverley Houghtby as Estate Trustees (or “Trustees”).

6In her will Ms. McGovern left the residue of her estate equally to her daughter Mary Parson and her son, the respondent, Mr. McGovern Jr.

7Margaret McGovern gave specific instructions, with regards to her residence at para. VIII (e)(1) in her will which reads as follows:

To obtain an appraisal of my residence known for municipal purposes as 1893 Fairmeadow Crescent, Ottawa, Ontario, or such other residence as may be owned by me at the date of my death and to expeditiously sell my said residence and to divide the net proceeds of such sale in equal shares, share and share alike, between my son HUGH McGOVERN and daughter MARY PARSON.

8The Estate Trustees and Mr. McGovern Jr. became involved in a dispute over this term in her will directing that her residence be appraised, sold and the proceeds divided equally between her son and daughter. Mr. McGovern Jr. was opposed to the sale of the residence on the open market and attempted to purchase the residence himself.

9Mrs. Parson states that Mr. McGovern Jr. has had a history of disputes and problems with other people for most of his adult life. Ms. Parson states that she believes that her brother has anger management issues and suffers from a personality disorder. She believes that her parents gave the direction in their wills that the residence be sold and the proceeds divided, to avoid disputes with Mr. McGovern Jr.

10In December of 2010, Mr. McGovern Jr. moved in with his widowed mother on a temporary basis. He did not leave the house after Ms. McGovern’s death and continued to live in the house. He refused to pay for rent, or any utilities, taxes and insurance until a writ of possession was obtained on March 26, 2013, ordering him to vacate the premises within 30 days. The respondent resided in the residence for approximately 29 months following his mother’s death without paying any rent or expenses related to the residence.

11After Ms. McGovern’s death the Trustee obtained three appraisals of the residence of $729,000, $625,000, and $560,000. The respondent also obtained two appraisals at $550,000 and $530,000.

12During his occupation of the residence, the respondent interfered with the attempted sale by preventing a real estate agent from entering the premises with Ms. Parson’s husband and by removing the “for sale” sign.

13The parties exchanged numerous letters and e-mails and attempted to arrive at an agreement to sell the residence to the respondent. Unfortunately, the parties were not able to agree on the terms of a sale to the respondent. At the motion held on March 26, 2013, the Court ordered that the residence be sold as directed in the will, and the respondent was ordered to vacate the residence within 30 days.

14The residence was ultimately sold on July 31, 2013 for $645,000 after being listed for $700,000 with a real estate agent. The Estate Trustees also had some minor repairs and painting done to the residence as recommended by the real estate agent, costing approximately $19,000.

15One of the respondent’s main objections to the passing of accounts is the Trustees’ failure to sell the residence to him for a price of $625,000 which he had offered. The Trustees had agreed to sell the residence to him for $625,000, on the conditions that he provided them with evidence that he had the required financing by obtaining a commitment letter from a financial institution, and if he agreed that he would vacate within 30 days if he was unable to obtain the financing. The respondent refused to accept these conditions and the Estate Trustees brought a motion for a writ of possession and sought permission to sell the home, as directed in the will, which was granted.

16I find that the Estate Trustees did not behave unreasonably by offering to sell the residence to the respondent for $625,000.00, where he would not have to pay one-half of the purchase price on closing (an interim distribution of $312,500.00), and provided the respondent provide evidence to Trustees of his ability to finance the purchase of the residence, and agreed to vacate within 30 days if he was unable to obtain the financing. The aggravating circumstances include: the respondent’s actions of interfering with the possible sale; the respondent continuing to live rent free in the residence for almost two and a half years without paying any expenses; a direction in the will that the residence be sold and the proceeds divided, and the respondent’s refusal of the Trustees’ offer to sell the residence to him for $630,000, which had been offered by another party.

17In order to complete the sale, the parties were required to remove the furniture and personal items from the residence. Ms. Parson provided a complete inventory of the personal assets in the residence and identified the items that she wanted. The respondent advised the Trustees that he essentially wanted all of the same items on Ms. Parson’s list, including a share of her mother’s costume jewelry. As a result, Ms. Parson abandoned her claim to all of the items on her list that the respondent wanted. Ms. Parson initially abandoned her claim on any disputed items provided the respondent removed everything on his list together with the balance of items that had been claimed by her. The next day Ms. Parson advised that any items that the respondent did not want would be removed and sold by the Estate Trustees.

18On August 9, 2013, six days after the closing, the respondent advised the Estate Trustees that he had purchased a house and wanted a further interim distribution from the Estate. The Trustees advised him that they would prepare the Estate accounts and make a further interim distribution upon the approval of the Estate accounts.

19The Estate accounts were produced on August 23, 2013, which was within two weeks of the request for a further interim distribution and a little over three weeks from the sale of the residence. The Estate Trustees took out an appointment to pass their accounts on November 6, 2013, and obtaining a date for February 7, 2014. The respondent filed an objection to the passing of accounts on December 13, 2013 and again requested an interim distribution.

20The accounts prepared by the Estate Trustees show a balance on hand of $944,440.75, before paying Trustees compensation claimed in the amount of $82,150.36, and after paying the income taxes owing in the terminal year as well as paying all expenses incurred with the sale of the house. The Trustees proposed to make an interim distribution to each beneficiary of $381,145.29, keeping $100,000 in reserve, if a waiver of passing of accounts and a release of Trustees was signed, by each beneficiary, if this was not agreeable they advised that they would proceed to have their accounts passed before any further distribution.

21The respondent indicated at the hearing of the motion that he was prepared to limit his claim against the Estate Trustees to the amount they have claimed as compensation, namely $72,699.44, plus applicable HST, plus any costs they incur in the contested passing of accounts proceeding. However, this information was not conveyed to the Trustees before the hearing and in effect amounts to providing a limited release of the Trustees, limiting the amount that the respondent could sue them for damages for their alleged negligence.

Analysis

Issue #1 - Should the Court order the Estate Trustees to Make on Interim Distribution of $381,145.29 to Each Beneficiary before Passing of Their Accounts?

22The respondent seeks an order compelling the Estate Trustees to make an interim distribution of almost all of the remaining assets of the Estate to both beneficiaries before they pass their accounts. He argues that the Estate Trustees have no right to refuse to make the substantial interim distribution to him at this time and submits that the Court should order to make the interim distribution to him in the amount demanded.

23The Trustees submit that they have the right to exercise their discretion to refuse to make any further interim distribution to the beneficiaries until their accounts are approved by the Court, by way of a passing of accounts. The Trustees submit that their decision is reasonable, in the circumstances a) where the respondent is alleging that the Trustees acted negligently in the sale of the residence and where he retains the right to sue the Trustees for damages he alleges he suffered; b) where there has not been any unreasonable delay in administering the Estate by the Trustees; and c) where the delay in administering the Estate was caused by the respondent’s unreasonable conduct of refusing to vacate his mother’s premises and refusing to pay any rent or ongoing expenses associated with the residence for almost two-and-a-half years after his mother’s death. The respondent’s actions also caused the Trustees to commence a Small Claims Court action against him for occupation rent, which is ongoing.

24I agree with the Estate Trustees’ submission that the respondent’s unreasonable conduct as described above, caused the delay in administering the Estate and find that the Estate Trustees have acted reasonably both in regards to the sale of the residence, as they followed a court order, and with regards to the division of the contents of the residence.

25In Re Blow Press Ltd. v. U.S.W.A. (1977), 18 O.R. (2d) 516, Rutherford J. held that the Court had jurisdiction to intervene in the exercise of a discretion by Trustees in three situations: 1) a mala fide exercise of such a discretion; or 2) a failure to exercise such a discretion; or 3) a deadlock between trustees as to the exercise of such a discretion.

26In this case there is no deadlock between the Estate Trustees. Rather, they have decided to exercise their discretion to not make any further interim distribution to the beneficiaries until their accounts are approved by the Court. The respondent characterizes the Estate Trustees’ exercise of their discretion as an unreasonable attempt to extort him to sign a release of executor and to waive passing of accounts.

27At para. 18 of Re Blow, Rutherford J. stated:

The starting point for consideration of the extent of the Court’s supervisory jurisdiction over trustees’ discretion is the House of Lords decision in Gisborne v. Gisborne (1877), 2 App. Cas. 300 (H.L.). In that case, the testator’s will provided that the trustees, “in their discretion, and of their uncontrollable authority”, pay all or part of the income of the trust for the maintenance and comfort of the testator’s wife. Their lordships held that where the trustees’ have exercised their discretion, the Court will not interfere in the absence of mala fides.

28In the Gisborne decision the Trustees were given a wide discretion to pay all of the income of the trust to the testator’s wife. The words used were “in their discretion, and of their uncontrollable authority.” At para. 20 in Re Blow, Rutherford J. stated:

…However, the predominant view appears to be that the Court has no greater power over the trustees’ exercise of a discretion which is “unenlarged” by such adjectives (see Philip H. Petit, Equity and the Law of Trusts, 2nd ed. (1970), p.340; Terence Sheard, “Comment” (1966), 44 Can. Bar Rev. 660 at pp. 660-661; Maurice Cullity, “Judicial Control of Trustees’ Discretions” (1975), 25 U. of T. L.J. 99 at p. 101).

29At para. 22 in Re Blow, Rutherford J. stated:

…In his article, Professor Cullity (op. cit., especially pp. 114-117) referred to several cases where the Courts intervened in cases where trustees, in effect, failed to exercise the discretion granted to them by the settlor or testator. . . . In my view, the Court’s discretion to intervene in such circumstances exists quite apart from the jurisdiction referred in Gisborne.” The Gisborne principle arises in respect of the exercise of a discretionary power and restricts court intervention to cases of mala fides”. In my view, where the Trustees fail to exercise a power, the Court’s jurisdiction is not so limited.

30In summary, Rutherford J. held that even in the absence of mala fides by the Trustees, which Gisborne held was required for the Court to intervene in the Trustees’ exercise of their jurisdiction, the Court had jurisdiction to intervene if the Trustees “failed to exercise a power” of discretion granted to them by the settlor or testator, even if their conduct would not justify their removal as Trustees.

31In this case, the Estate Trustees have exercised their discretion and decided not to make any further interim distribution of the Estate proceeds to either beneficiary until their accounts were passed. The respondent has not presented any evidence of undue prejudice as I do not have any evidence that he is suffering any financial hardship. The only evidence of the respondent’s financial situation before me is that he has a mortgage of $295,000 on his house, which he recently purchased.

32The Estate Trustees also have good reason to believe that the respondent will cause them to incur additional legal costs, as he is alleging negligence against them and it was possible that he would commence legal action against them. Counsel for the respondent stated orally in his submissions that the respondent would not commence any further legal action against the Estate Trustees for damages caused by their negligence in their sale of the residence. However no partial release was provided to the Trustees signed by the respondent. Counsel also stated that he intends to raise the same issue in the passing of accounts proceeding to reduce the Trustees’ compensation. One of the reasons that the Trustees have decided to proceed with the passing of accounts before making any further interim distribution was the reasonable possibility that the respondent would sue them as he refused to sign he release of Trustees. Counsel stated for the first time, at the hearing of the motion that the respondent was prepared to limit the amount of his claim against the Estate Trustees to the amount they claimed for compensation, namely $82,150.36 and to only assert this claim in the passing of accounts proceeding. This information should have been provided to the Trustees before the motion, with a partial release to allow them to exercise their discretion on the appropriate amount of any interim distribution with this knowledge.

33In Brighter v. Brighter Estate, [1998] O.J. No. 3144, Alan, one of the three beneficiaries, disputed the evaluation of the deceased’s residence and contested the amount of fees charged by the executor. There was also a dispute about Alan storing personal effects in the deceased’s residence. The executor had prepared a statement of accounts, which included transferring the residence, to one beneficiary at the disputed value and with the executor’s fees in an amount that Alan disputed. The executor asked Alan to sign a release of executor and to waive the passing of accounts as a condition of receiving his distributive share, while she proceeded to distribute the other two shares. The Court found that this was improper.

34At para. 9, Sheard J. stated:

…The executor has no right to hold any portion of the distributable assets hostage in order to extort from a beneficiary an approval or release of the executor’s performance of duties as trustee, or the executor’s compensation or fee. It is quite proper for an executor (or trustee, to use the current expression) to accompany payment with a release which the beneficiary is requested to execute. But it is quite another matter for the trustee to require execution of the release before making payment; that is manifestly improper.

35In Brighter, the executor advised that she was going to distribute the shares to the other two beneficiaries and would hold Alan’s share until he signed the waiver and release of executor. This is not the case before me. In this case, the Estate Trustees advised the respondent by letter of August 13, 2013 that they would prepare their accounts and, if the respondent objected, they would proceed with a passing of accounts. They have set a date for passing their accounts and the parties have agreed on a timetable to complete the contested passing of accounts, including mediation and setting a pre-trial conference date. The Trustees did not threaten to withhold only one beneficiary’s distributive share, until he signed a release and approved the Estate Trustee’s compensation as in the Brighter case. In the case before, the Trustees exercised their discretion not to make any further interim distribution to any beneficiary until they had passed their accounts.

36The respondent also relies on the case of O’Connor v. Jonasson, 2012 CarswellOnt 13137, is a two-paragraph decision ordering the executors to make an interim distribution of $30,000 to a beneficiary, before they passed their accounts. The executors initially proposed to make the interim distribution provided a release and an approval of the executor’s accounts were signed by the beneficiary. The beneficiary refused to sign the release and the executors applied to pass their accounts. The judge relied on the Brighter decision and exercised his discretion to override the decision of the Trustees to pass their accounts before making any further distribution from the Estate. However, the O’Connor decision does not set out any reasons or principles to be applied for overriding an executor’s discretion, other than referring to the Brighter decision and which was based on a different fact situation.

37Neither of the Brighter or O’Connor decisions addressed the issue of what circumstances would allow a court to interfere with and override the Estate Trustees’ exercise of their discretion. Neither decision referred to the criteria set out in Re Blow. In the Brighter case, the Court’s decision to override the Trustees’ discretion and to order an interim distribution could have been justified on the ground that the Trustees had acted with mala fides, because she was attempting to extort a release from the beneficiary, while distributing the shares to two other beneficiaries. This conduct would also have breached a Trustees duty of its fairness to the beneficiaries. In Brighter, the executor had not exercised her discretion to delay distribution to all beneficiaries until she had her accounts approved by the Court.

38An Estate Trustee is in a fiduciary position and must act in good faith and fairly to all beneficiaries. An Estate Trustee’s request for a release and a waiver of passing of accounts from all beneficiaries before making a final distribution of an estate is a reasonable step, provided the beneficiaries are advised that, if any beneficiary does not agree, the Estate Trustees will ask a court to review and approve their accounts and that the beneficiaries will have an opportunity to have their objections decided by a judge. This step may incur additional costs to the Estate and to the individuals involved but I find this is a reasonable course of action for the Trustees to follow when there is any objection by a beneficiary or a threatened legal action for negligence. The Rules of Practice permit either an executor or a beneficiary to have the Trustees’ proceed with a passing of accounts where the Trustees actions and claim for compensation will be reviewed by a judge. A passing of accounts is generally a summary proceeding which does not unreasonably delay the administration of the Estate, and allows for any objections to be considered and decided by the Court. I find that the Estate Trustees should not be prejudiced by proceeding to pass their accounts, as provided in the Rules, when there is an objection by a beneficiary and allegations of negligence.

39The respondent’s motion for an immediate further substantial interim distribution before the accounts have been passed is really an interlocutory motion in the passing of accounts proceeding. In this case, the accounting and proposed distribution by the Estate Trustees, was in essence a final distribution, as the details of their claim for compensation and the accounting was provided as if on a final basis. The Estate Trustees proposed to hold $100,000 to pay any additional income taxes and possibly additional accounting and legal fees until the Estate was finalized.

40The Estate Trustees were also made aware by the respondent that he objected to the amount claimed for executor’s compensation and was alleging that the Estate Trustees’ breached their fiduciary duty and duty of good faith by refusing his offer of $625,000 for the residence. By implication he was alleging that the Estate Trustees acted negligently in the manner in which they sold the residence.

41I find that the following factors, three of which were identified in Re Bow, should be considered by the Court when deciding whether to order Estate Trustees to make an interim distribution to the beneficiaries:

(a) Are the Estate Trustees deadlocked? i. Not applicable in this case but would be a strong factor justifying a court to exercise its discretion as to what interim distribution was fair and appropriate in the circumstances.

(b) Have the Estate Trustees acted with mala fides? i. The Estate Trustees had proposed that an almost final distribution be made to the beneficiaries if they signed a release of executor and waived the passing of accounts or alternatively they would proceed to pass their accounts. When the respondent advised that he was not in agreement, the Estate Trustees proceeded to arrange to pass their accounts, which they have done expeditiously. I find that the Estate Trustees have not acted with mala fides in these circumstances, especially where the beneficiary indicated that he may commence legal action for damages due to the negligence of the Estate Trustees. ii. The Estate Trustees did not distribute to one beneficiary and not to the other and did not attempt to extort the respondent into signing a release and a waiver. The Trustees simply proposed to make the interim distribution to both beneficiaries if a release and approval of accounts was signed; when the respondent did not agree, they proceeded to pass their accounts as they had advised. I find that this is the appropriate approach for any Estate Trustee to follow.

(c) Have the Estate Trustees failed to exercise their discretion to make an interim distribution in the amount of $381,245.29 to each beneficiary? i. When the Estate Trustees, were advised that the respondent did not agree to sign a release of executor and objected to the Trustees’ accounts, they decided not to make any further interim distribution until after the Court had reviewed and approved or adjusted their accounts. The proposed distribution was essentially a final distribution because a small amount was retained (approximately 10 percent of the total beneficiaries shares) in the estate; and over 90 percent of the beneficiaries’ share would have been distributed. I find that the Estate Trustees have not refused to exercise their discretion but rather have exercised their discretion and decided not to make a further distribution from the Estate to either beneficiary until the Court had reviewed their conduct and accounting.

(d) Have the Estate Trustees behaved unreasonably or breached their fiduciary duty and duty of good faith and fairness to the respondent? i. This factor is very similar to determining whether the Trustees have acted with mala fides. The Estate Trustees have behaved reasonably to date as I found that the respondent caused the delay until July 31, 2013 because he remained in his late mother’s residence without paying rent or expenses for almost two‑and-a-half years until a writ of possession was obtained ordering him to leave the premises. ii. The contents of the residence were divided very reasonably by the Estate Trustees, essentially all in the respondent’s favour. iii. The Estate Trustees provided a detailed accounting of their administration within about two weeks of the request on August 9, 2013 which was within a very reasonable time period. iv. I find the Estate Trustees have not caused any unreasonable delay in administering the Estate. v. The Estates’ assets have been invested by the Estate Trustees in GIC’s which are an approved investment for Trustees. vi. The Trustees’ action of proceeding to pass their accounts as permitted by the Rules when facing an allegation of negligence and potential legal action and an objection to their accounts is a reasonable step. In fact, the respondent is seeking damages against only one of the Estate Trustees, namely, Mary Parson, for the financial costs of his mortgage as well as interest on his distributive share. This claim is illogical and shows the respondent’s animus towards his sister Ms. Parson. The claim should have been made against both Estate Trustees if there was any breach of fiduciary duty, fairness or good faith. I conclude that the Estate Trustees have acted reasonably throughout and have not breached their fiduciary duty or their duty of good faith or fairness to the respondent.

(e) Would a beneficiary suffer under undue prejudice if an interim distribution was not made? i. There is no evidence of any undue prejudice to the respondent other than that he has chosen to purchase a house and has obtained a mortgage to do so. I do not have any evidence that the respondent is in a difficult financial position, or that a delay of approximately six months to complete the passing of accounts would cause him any undue hardship. This is especially the case where the balance of his share of the Estate is invested in GIC’s earning interest, albeit at approximately 1 percent per year at the CIBC. ii. I conclude based on the evidence before me, that there will be short delay to complete the passing of accounts which would cause minimal prejudice to the respondent. The respondent will ultimately receive a substantial sum of money in the near future, which is currently invested on his behalf.

Disposition of Motion Requiring the Estate Trustees to Make an Interim Disposition of $381,245.29 to the Respondent

42The respondent’s motion, an order that the Estate Trustee make an interim distribution to him of $381,245.29 is dismissed, for the reasons given above. While I might have exercised my discretion in a different manner and made a smaller interim distribution after being advised that the respondent was limiting his claim to the amount of compensation claimed in the passing of accounts proceeding. I find that I do not have any basis for substituting my discretion for that of the Trustees in the circumstances described above.

Issue #2 Disposition on Respondent’s Motion for an Order Requiring Ms. Parson Pay Him Interest on His Distributive Share

43The respondent’s motion to have Ms. Parson pay him interest from her share of the Estate on the amount of a further distribution to him is dismissed for the following reasons: a) the respondent was unsuccessful on this motion to obtain an order for an interim distribution of $381,245.29; b) the Estate Trustees have acted reasonably throughout; c) the respondent was responsible for the delay in selling the residence and converting it into assets in which a Trustee is permitted to invest Trust funds; d) the Estate assets have been properly invested in GIC’s; and e) the respondent will receive his share of the interest earned on his distributive share of the Estate assets on final distribution; f) and the claim against only one of the Trustees does not make sense and demonstrates animus by the respondent towards his sister.

Issue #3 Disposition of the Respondent’s Motion for an Order that Ms. Parson pay for his Financing Costs to Purchase a New House

44The respondent’s motion for the above remedy is also dismissed for the following reasons:

(a) Ms. Parson as the Estate Trustee is not responsible to pay for the respondent’s accommodation costs, whether it be his rent, if he rented an apartment or for his carrying costs for a house or condo including interest on any mortgage;

(b) The respondent is responsible to pay for his own accommodation costs, which includes interest on any mortgage which he decided to obtain;

(c) The respondent had no right to remain in his late mother’s residence rent free and without paying for any expenses associated with the residence without the Estate Trustee’s consent;

(d) The respondent will ultimately receive his distributive share of the estate, which will include interest earned on his share of the Estate, and as a result he will not suffer any undue financial hardship.

Costs

45The respondent sought costs of $5,676 on a partial indemnity basis and $7,569 on substantial indemnity basis against the Estate Trustees if he was successful.

46The Estate Trustees seek costs of $5,591 on a partial indemnity basis and $8,239 on a full indemnity basis against the respondent.

47The Estate Trustees were successful on the motion.

48In McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.) the Court of Appeal held that costs in estate litigation should follow the Rules that apply in civil litigation unless one of the relevant policy considerations apply. There are no relevant policy considerations affecting estate litigation that would affect the award of costs in this case. One of the Estate Trustees is not a beneficiary and I have found that she has acted reasonably and has not breached any of her duties as an Estate Trustee to the respondent, and the Estate Trustees were successful on the motion.

49In Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, the Court of Appeal approved an award of blended costs which I find is appropriate in this case.

Disposition of Costs

50The respondent is ordered to pay costs of $4,500 to the Estate Trustees on partial indemnity basis from his share of the Estate and the Estate Trustees are entitled to be indemnified for the balance of their legal costs by the Estate.