Estate of Janina Waclawczyk

CITATION: 2014 ONSC 5591

COURT FILE NO.: 14-48818

DATE: 2014-09-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Estate of Janina Waclawczyk

BEFORE: Mr Justice Ramsay

COUNSEL:
Mr Mark Castle for Elizabeth Schaffner

Mr Brad Wiseman for John Zagrodski

Mr Sean Heeley for Ewa Wagner

Andrzej Zagrodski in person

HEARD: 2014-09-25 at Hamilton

ENDORSEMENT

[1] The testatrix died in 2011 having made a will in which she named her son John Zagrodski and her daughter Ewa Wagner executors. The beneficiaries of the will are the two executors and the testatrix’s other two children, Elizabeth Schaffner and Andrzej Zagrodski (“Andy”). John and Elizabeth have both brought motions for directions.

[2] In the will made in 1983, the testatrix left a property on Bunkerhill Drive in Hamilton to Elizabeth and the residue of the estate to the four children in equal shares. In a holograph codicil executed in 2007, she left a property on Lymburner Avenue in Grimsby to Andy. Andy moved there before the testatrix died, and still lives there.

[3] Until today, it was not known whether the Lymburner Avenue codicil was valid. Happily, Andy produced the original codicil in court and swore to its execution. The other parties now accept that it is a valid codicil. Until today they had only seen a photocopy. This makes my task somewhat more straightforward than the task that faced the executors until now.

[4] The estate has no significant assets apart from the properties on Bunkerhill Drive and Lymburner Avenue. Since these properties go to Elizabeth and Andy respectively, the residue of the estate will not be able to satisfy the estate’s debts and expenses. Those debts and expenses will have to be satisfied from the two specific gifts. The Bunkerhill Drive property has been sold and the proceeds are in trust. If Andy cannot raise money to pay “his” share of the debts of the estate, the house on Lymburner Avenue will have to be sold.

[5] From the beginning there was contention between the two executors. John favoured a more business-like approach that involved selling both properties, paying the debts of the estate and distributing the rest according to the will, once the validity of the Lymburner codicil was determined. Ewa and Elizabeth favoured a more relaxed approach designed to give Andy time to come up with the money needed to stay on Lymburner.

[6] The difference led to disagreements and eventually to both parties retaining counsel. The administration of the estate is stalled and Elizabeth is waiting for her legacy. To date, expenses of the estate that have been paid have come from her share or from John personally. John has no obligation as trustee to spend his own money on behalf of the estate.

[7] It is not necessary to recite the various complaints and counter-complaints. In order to preserve the assets of the estate and ensure its due administration it is necessary to remove both executors and replace them with an impartial professional. Mr James Higginson, a lawyer, has agreed to accept the appointment. I accept Elizabeth’s suggestion and appoint him as executor. Leaving John and Ewa as executors, or John alone, would not solve the impasse. There is a serious lack of trust between John on the one hand and the other three siblings on the other. I do not assign blame for this, but it must be recognized as a fact.

[8] I expect that it will be possible for the estate to be administered fairly expeditiously at this point. Mr Higginson will determine the just debts and expenses of the estate, which will include the reasonable legal expenses of John and Ewa both. Andy will either pay the share of the expenses attributable to the property left to him, or Mr Higginson will sell it. Andy will not be liable for occupation rent to date.

[9] The parties’ reasonable legal expenses include the actual costs of today’s motions, which shall be paid by the estate. I fix those actual costs at $10,000 each for John and Elizabeth and $2,500 for Ewa, all-inclusive. Andy did not incur legal costs for the motions.

[10] I order as follows:

a. John Zagrodski and Ewa Wagner are removed as executors of the estate;

b. James Higginson is appointed executor of the estate;

c. The estate will pay the fees associated with these motions as follows:

i. $10,000 to Mr Wiseman;

ii. $10,000 to Mr Castle; and

iii. $2,500 to Mr Heeley.

J.A. Ramsay J.

Date: 2014-09-25