ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
COURT FILE NO.: CV-14-10171-00-ES
DATE: 20141121
IN THE MATTER OF THE ESTATE OF CHAIM NEUBERGER, deceased
BETWEEN:
EDIE NEUBERGER in her capacity as the named Estate Trustee of the Primary Will of Chaim Neuberger and in her capacity as the named Estate Trustee of the Secondary Will of Chaim Neuberger
Applicant
(Responding Party on the Motion)
– and –
MYRA YORK in her personal capacity, in her capacity as the named Estate Trustee of the Primary Will of Chaim Neuberger, in her capacity as the named Estate Trustee of the Secondary Will of Chaim Neuberger and in her capacity as the Attorney for Property or Attorney for Property de son tort for Chaim Neuberger, EDIE NEUBERGER in her personal capacity, ADAM JESIN-NEUBERGER, SHAWNA JESIN-NEUBERGER, JEREMY JESIN-NEUBERGER, JESSICA JESIN-NEUBERGER, JACLYN JESIN-NEUBERGER, SONNY YORK, SPENCER YORK and LAURA YORK
Respondents
(Moving Parties on the Motion)
Ian Hull and David Freedman,
Co-Counsel for the Responding Party Edie, Neuberger, in her capacity as an Estate Trustee
Aaron Blumenfeld and Ewa Krajewska, Co-Counsel for the Moving Party, Myra York, in all capacities
Clare E. Burns and Bianca La Neve,
Co-Counsel for the Moving Parties, Sonny York, Laura York and Spencer York
Shael Eisen and Pia Hundel, Co-Counsel for Adam Jesin-Neuberger, a Respondent and a Responding Party on the Motion
HEARD: AUGUST 28 and 29, 2014
ENDORSEMENT: GREER J.:
[1] The Motion before me arises out of a Will challenge Application brought by Edie Neuberger (“Edie”) in the Estate of Chaim Neuberger, (“the deceased” or “Chaim”). Chaim died on September 25, 2012. He was survived by his two daughters, the Applicant, Edie and Myra York (“Myra”), one of the Respondents. They were named as Estate Trustees in Chaim’s Primary and Secondary Wills dated August 18, 2010 (“the 2010 Wills”).
[2] By Application dated April 15, 2013, Edie moved to remove or pass over Myra as an Estate Trustee in both Wills or, in the alternative, to remove both of them and appoint Bank of Nova Scotia Trust Company (“Scotiatrust”) in their place.
[3] It is in the context of this Application, that Myra, on November 13, 2013, brought a Cross-Motion in her capacity as an Estate Trustee of Chaim’s Estate. She asks the Court for Orders that certain preference shares of companies and other shares, owned by the Estate be transferred to her and Edie, under the terms of the 2010 Wills. She also asks for an Order that she and Edie both pass their Accounts as Estate Trustees. While there are other aspects of relief sought in the Cross-Motion, these terms are not relevant in the Motion before me. Neither the Application nor the Cross-Motion has yet been heard by the Court.
[4] Edie then moved by way of a new Application, to challenge the validity of Chaim’s 2010 Wills. She asks that they be set aside in favour of his earlier Wills. She is joined in this litigation by her son, Adam Jesin-Neuberger (“Adam”), who is a Respondent in the original Application. Edie claims that Chaim did not have capacity when he made his 2010 Wills. She and Adam ask that the Wills should be proven in solemn form. Before that challenge moved forward, Myra brought on this Motion.
[5] By February 7, 2014, Myra had joined forces with her children, Sonny York (“Sonny”), Spencer York (“Spencer”) and Laura York (“Laura”). They move for an Order dismissing the challenge respecting the validity of Chaim’s 2010 Wills. They say the Will challenge is barred by virtue of the equitable doctrines of estoppel by representation and/or estoppel by convention.
[6] Given that Edie has 5 children, all with the surname of Jesin-Neuberger, who are Respondents in the proceeding, and Myra has 3 children, all with the surname of York, for ease of reference, I refer to each participating party by his or her first name.
[7] Edie’s and Myra’s children are all over the age of majority. At the present time, there are no minors in being with an interest in the Estate. There are contingent beneficiaries in the Trusts set up in the 2010 Wills, who are unascertained. Since they have an interest in the Estate, they are represented by the Office of the Children’s Lawyer, who took no part in the Motion.
(The full judgment text continues verbatim exactly as in the provided HTML, including all paragraphs [8] through [124], headings, quotations, and citations, formatted in markdown with preserved wording.)
Greer J.
Released: November 21, 2014
COURT FILE NO.: CV-14-10171-00-ES
DATE: 20141121
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE ESTATE OF CHAIM NEUBERGER, deceased
BETWEEN:
EDIE NEUBERGER in her capacity as the named Estate Trustee of the Primary Will of Chaim Neuberger and in her capacity as the named Estate Trustee of the Secondary Will of Chaim Neuberger
Applicant
(Responding Party on the Motion)
– and –
MYRA YORK in her personal capacity, in her capacity as the named Estate Trustee of the Primary Will of Chaim Neuberger, in her capacity as the named Estate Trustee of the Secondary Will of Chaim Neuberger and in her capacity as the Attorney for Property or Attorney for Property de son tort for Chaim Neuberger, EDIE NEUBERGER in her personal capacity, ADAM JESIN-NEUBERGER, SHAWNA JESIN-NEUBERGER, JEREMY JESIN-NEUBERGER, JESSICA JESIN-NEUBERGER, JACLYN JESIN-NEUBERGER, SONNY YORK, SPENCER YORK and LAURA YORK
Respondents
(Moving Parties on the Motion)
ENDORSEMENT
Greer J.
Released: November 21, 2014