Court File and Parties
COURT FILE NO.: 05-134/13
DATE: 20140626
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE ESTATE OF KAZIMIERZ KOLODZIEJ, deceased
BARBARA KOLODZIEJ
Applicant
– and –
URSULA JASINSKI and others
Respondents
Christopher M.B. Graham, Counsel for the Applicant
Mr. Bruce C. Robertson, Counsel for the Respondents
HEARD: JUNE 26, 2014
Endorsement
ENDORSEMENT: GREER J.:
[1] Kazimierz Kolodziej died on July 12, 2011 at the age of 88 years. He left a Will dated April 19, 2005. On February 7, 2014, Mr. Justice McEwen declared it to be the deceased’s Last Will and Testament in para. 1 of his Order of that date. That Will has not been probated and the Estate has not been administered yet, given that the deceased’s 3 children, Ursula Jasinski, Barbara Kolodziej and Henry Kolodziej have been unable to agree on how the Estate should be administered. The deceased was also survived by his common law spouse, Kaziemiera Matas.
[2] In para. 3 of his Will, the deceased named his daughters Ursula and Barbara to be his Estate Trustees. I shall refer to them and to the deceased’s son and common law spouse by their first names for easy reference throughout this Endorsement.
[3] On November 1, 2013, Barbara had issued her Application. She asks for an Order that the Court pass over her and Ursula as Estate Trustees. Instead, Barbara asks that Craig Ross, a partner in the law firm of Pallet Valo LLP, be appointed as Estate Trustee in their place and stead.
[4] On January 30, 2014, Ursula responded by serving and filing an Application of her own, asking the Court to pass over Barbara and leave Ursula as the sole Estate Trustee.
Some background facts:
[5] Under the terms of the deceased’s Will he made the following bequests:
Para. 4(b) to divide his personal, domestic and household or ornament articles among his 3 children as they agree.
Para. 4(d) to allow his wife Kaziemiera to occupy his home at 3345 Silverado Drive, Unit 29, Mississauga, until the first of one of the five scenarios set out in the paragraph. Since she survived him for 60 days, none of the other scenarios take effect. She was responsible for paying all expenses listed in connection therewith. On that date, the property was to be listed for sale.
Para. 4(e) directed that the residue of his Estate be divided equally among his children alive at his death, with a gift over of the share of any child predeceasing him to be divided in equal shares per stripes among his or her issue.
[6] The assets of the Estate are not complex They consist of his townhouse valued at between $400,000 - $450,000, a Term Deposit of $5,000 and a bank account of $170,000 plus interest of about $5,000 accrued on that, and an unopened S.D. Box.
[7] I am told that Kaziemiera continued to occupy the home and paid the expenses until shortly before this Application was heard. I am told that the townhouse is now vacant.
[8] The deceased suffered a stroke on or about November 30, 2007. Ursula says that Barbara had been estranged from the family since approximately 2005. He had, on April 19, 2005, made a Continuing Power of Attorney for Property naming Ursula and Barbara as joint attornies. After the stroke, Ursula acted under the Power of Attorney and informed Barbara of this fact by letter dated February 9, 2008. Barbara says the first time she saw the Power of Attorney was on December 29, 2009.
[9] I am told that Henry lives abroad and he has absented himself from these proceedings.
Barbara’s Position
[10] Barbara says neither Ursula nor Henry informed her of her father’s death at the time he died. Nor was she told of the date of the funeral, so she did not attend. Barbara received an e-mail from her Aunt Diane Majka on July 16, 2011 saying the funeral was that day and had only found out about the death. She obtained a copy of the Will on July 26, 2011 from the deceased’s lawyer, Paul T. O’Marra. Somewhere around January/February 2012, Barbara learns from Henry that there is an insurance policy of which she is the beneficiary.
[11] Barbara suffers from severe scoliosis and has a rod in her back to secure her vertebrae. She says her condition is degenerative and has “horrific” back pain. She wanted the money to take a laser treatment for this condition in the USA.
[12] On May 23, 2012, Barbara receives an e-mail from Henry pleading with her to renounce and let Ursula act alone as the Estate Trustee. On October 26, 2012, she receives a letter from Ursula’s lawyer asking her to renounce. Barbara retains counsel on July 19, 2013. She says in para. 8 of her Affidavit that she believes neither she nor Ursula is “suitable to act as estate trustee.”
Ursula’s Position
[13] Ursula had not seen Barbara for about 3 years before the deceased had his stroke. They met on or about November 30, 2007. Barbara was told she was a co-attorney with Ursula. Ursula says their relationship was marred by Barbara making “false accusations against me, libel and slander and falsehoods.” By letter of February 9, 2008 to Barbara, Ursula says they must make decisions about their father’s car, which Barbara had, saying it must be returned and the lease terminated. Barbara failed to co-operate. She sent a vitriolic letter to Kaziemiera’s counsel, 4 pages in length, attaching a typed 2-page document purporting to be an amendment to the deceased’s Will. Ursula believes the signature is a forgery.
[14] Ursula says Barbara has continually failed to provide contact information to her or to the residence where the deceased lived after his stroke. They were both unable to contact Barbara by phone when the deceased died. She says Barbara posted untruths about Ursula and the family on Facebook. She attaches 31 pages of this with as an Exhibit of Barbara’s on-going hatred of Ursula and the family.
[15] Ursula says she was her father’s primary caregiver, acted for him under the Power of Attorney and wishes to administer his modest estate.
Analysis
[16] The Court has jurisdiction to pass over a named executor or estate trustee where that person has not received a Certificate of Appointment. See: Windsor v. Mako, 2008 CarswellOnt 6442 (Ont.S.C.J.) paras. 37 and 38.
[17] It is trite law to say that the Court should not lightly interfere with the discretion exercised by a person in choosing who he or she wants as his or her executors and trustees. It should only occur on the clearest evidence. See: paras. 39, 40 and 41 of Windsor, supra.
[18] The Court looks at all the circumstances of the case and assesses the level of animosity among the named estate trustees. The recent decision of the Court of Appeal in Chambers Estate v. Chambers, 2013 ONCA 511 sets out these principles in paras. 95 and 96. In para. 99, the Court points out that the trustees must act jointly and that there is a risk of deadlock if the animosity between named estate trustees is so great that the best interests of the beneficiaries is at risk. In that case, the Court upheld the appointment of a sole corporate Estate Trustee to act, passing over both named ones.
[19] In Crawford v. Jardine, [1997] O.J. No. 5041 (Ont.Ct. of Justice (Gen.Div.)), the Court in para. 20 says it is not in every instance of animosity that will lead to the removal of a trustee.
[20] In the case before me, the prolonged history of the animosity between Barbara and her family members, their estrangement and the failure of Barbara and Ursula to move this matter forward in a timely manner, has put the Estate at risk. The deceased’s residence is now empty, his common law spouse may now be making a claim against the estate, and the assets remain as they were at the deceased’s death.
[21] In the circumstances of this case, I pass over both Ursula Jasinski and Barbara Kolodziej as the Estate Trustees named in the Will of Kazimierz Kolodziej dated April 19, 2005 and appoint Craig Ross, Barrister and Solicitor in their place and stead to act as Estate Trustee in their place. His Consent to act as such is undated but is attached as Exhibit B to Barbara’s Affidavit sworn October 31, 2013. Order to go accordingly.
[22] If the parties cannot otherwise agree on Costs, I will receive brief Written Submissions on the same from counsel, no longer than 3 pages plus time dockets, a Bill of Costs and any case law on which they rely. They shall be sent to me care of Judge’ Administration, 361 University Avenue, Toronto.
Greer J.
Released: June 26, 2014
TYPED VERSION TO FOLLOW
COURT FILE NO.: 05-134/13
DATE: 20140626
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE ESTATE OF KAZIMIERZ KOLODZIEJ, deceased
BARBARA KOLODZIEJ
Applicant
– and –
URSULA JASINSKI and others
Respondents
ENDORSEMENT
Greer J.
Released: June 26, 2014
TYPED VERSION TO FOLLOW