SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3222/14

DATE: 2014/07/10

RE: Lindsay Hay, Applicant

AND:

Gerald Atkin Executor of the Estate of Edward Graham Atkin, Respondent

BEFORE: Rady J.

COUNSEL:
Robert Haas, for the Applicant

B. Raczynska, for the Respondent

HEARD: July 8, 2014

ENDORSEMENT

[1] Edward Graham Atkin died on March 17, 2001. He appointed two of his four children, Gerald Atkin and Nancy Hay, as estate trustees. Because Gerald was living abroad at the time, he renounced in Nancy’s favour. The Graham Atkin estate was administered by Nancy, with the exception of a Muskoka cottage property. Due to a misunderstanding, the four children believed that the cottage was to go to the last of them surviving.

[2] Nancy died on January 4, 2004. Gerald was named her executor.

[3] After receiving legal advice, the siblings discovered that the cottage was theirs in equal shares. Gerald wished to purchase his three sisters’ interests.

[4] On January 13, 2014, Gerald was named as the succeeding trustee of the Graham Atkin estate. Gerald purchased the interests of his sisters in the cottage in a transaction scheduled to close in April 2014. He signed the agreement of purchase and sale in his personal capacity and as trustee of Nancy’s estate.

[5] Lindsay Hay is Nancy’s daughter. She is challenging the cottage transaction. In this proceeding, she seeks the removal of Gerald as estate trustee of the Graham Atkin estate, a passing of accounts from January 4, 2004 (the date of her mother’s death) to present, among other things.

[6] In a proceeding related to her mother’s estate, she seeks the same relief. An order has been made in that proceeding directing Gerald to pass his accounts relating to Nancy’s estate.

[7] She seeks a similar order in this proceeding. Gerald is willing to pass his accounts from January 13, 2014 when he was appointed succeeding trustee of the Graham Atkin estate. He says that the estate was completely administered by Nancy prior to her death, with the exception of the cottage property.

[8] On behalf of the applicant, Mr. Haas submits that Gerald “stepped into Nancy’s shoes” when he succeeded her and is therefore obliged to pass accounts from the time of her death.

[9] Section 55 of the Trustee Act R.S.O. 1990, c.T. 23 provides as follows:

Executors of executors have the same actions for the debts and property of the first testator as he or she would have had in life, and are answerable for such of the debts and property of the first testator as they recover as the first executors would be if they had recovered the same.

[10] In Re Laking, 1971 385 (ON SC), [1972] 1 O.R. 649 (Surr. Ct.) the court made this observation:

Thus, if a sole executor, or the survivor of several executors, having proved the will, dies without having completed the administration of the estate, his executor when he proves the will becomes the executor of the original testator.

[11] Whatever the merits of the application, the foregoing principles lead me to the conclusion that Gerald is obliged to pass his accounts respecting the Graham Atkin estate from the date of Nancy’s death to June 30, 2014. Clearly, the administration of the Graham Atkin estate was not complete when Nancy died because of the outstanding cottage issue. Gerald assumed Nancy’s obligations as executor when he was named as succeeding trustee. The passing of accounts is one of those obligations.

[12] An order will issue accordingly. Given the length of time for which accounts must be prepared, Gerald will deliver the accounts by September 30, 2014. There was no cross motion before me, and as a result, I am unable to convert this application into an action, requiring the delivery of statements of claim and defence, examinations for discovery and so on. This is without prejudice to the respondents seeking such relief in the future.

[13] I will receive brief written submissions respecting costs from the applicant by July 18, 2014 and the respondents by July 25, 2014.

Justice H. A. Rady

Date: July 10, 2014