CITATION: Irwin v. Ruberry, 2015 ONSC 1821

COURT FILE NO.: CV-14-0016

DATE: 2015-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JOHN DAVIDSON IRWIN, deceased.

B E T W E E N:

Jeffrey Irwin,

Self-Represented

Personally, as Estate Trustee

• and -

Joan Ruberry,

Self-Represented

Personally, as Estate Trustee

HEARD: November 28, December 2-5, 2014,

at Thunder Bay, Ontario

Madam Justice H.M. Pierce

Reasons on Interim Passing of Accounts

Introduction

[1] John Davidson Irwin died on August 24, 2008. In his will, he named three of his five children, Jeffrey Irwin, Jack Irwin, and Joan Ruberry as executors. A certificate of appointment of Estate Trustees was granted to the three siblings on November 24, 2008. Jack Irwin sought permission from the court to resign as trustee without passing his accounts and an order was issued accordingly on May 20, 2010. One of the reasons Jack Irwin sought to be removed was the constant bickering among trustees and the lack of progress in the administration of his father’s estate.

[2] Jeffrey Irwin (“Mr. Irwin”) served trespass notices on the family of Ms. Ruberry, his co-trustee, barring them from attending at the home of the deceased. He controlled the keys to the deceased’s house. Realtors withdrew their services in marketing the deceased’s home on account of the conflict between the estate trustees. The trustees disagreed over the inscription on the deceased’s headstone.

[3] The accounts were ordered passed in December, 2011. The animosity between Mr. Irwin and Ms. Ruberry was apparent at the passing of accounts and prolonged the process in a manner that was painful to watch.

[4] It is evident that there is deep unhappiness in this family. Neither party was represented at the passing of accounts, although Ms. Ruberry had legal advice with respect to her objections which was helpful on the passing of accounts.

[5] The deceased’s will provided that the residue of the estate be divided into six equal shares to dealt with as follows:

(a) a life interest in two-sixths of the residue was to be held in trust for the testator’s daughter, Judy Buscello [sic] and upon her death, the capital remaining is to be divided “in equal shares per stirpes” among her children alive at Ms. Buscello’s death, to be administered in the terms of the trust;

(b) one-sixth share to the testator’s daughter, Joan Ruberry;

(c) one-sixth share to the testator’s son, Jeffrey Irwin;

(d) one-sixth share to the testator’s son, Jack Irwin, and

(e) one-sixth interest to the testator’s son, James Irwin.

[6] Ms. Buscello has mental health issues; she has been assessed as being incapable. Her affairs have been handled by the Public Guardian and Trustee since April, 2014. She is currently in receipt of Ontario Works benefits. Ms. Ruberry testified that she has not been able to persuade her sister to apply for an Ontario Disability Support Pension.

[7] The trust for Ms. Buscello named Jeffrey Irwin as the trustee, but if Mr. Irwin predeceased the testator or was unable to act, then the testator’s granddaughter, Erin Dunn, was named as alternate trustee. The will specified that Ms. Buscello’s share in the estate did not vest in her; that the only interest she was entitled to in the estate was to payments actually made to her or on her behalf in the absolute discretion of the testator’s trustees. The will made no provision for the trustees to maintain the deceased’s house for the benefit of Ms. Buscello.

[8] The trustees were directed by the terms of the will to maximize the benefits Ms. Buscello would receive from other sources, including by making payments to or for Ms. Buscello in varying amounts and at such times as the trustees deemed advisable. A lump sum payment to Ms. Buscello would likely disentitle her to benefits under a variety of government programs.

[9] When the matter first came before the court to pass accounts, I ordered Mr. Irwin to serve the notice of return of appointment for passing of accounts, a copy of the original and revised accounts, notice of objection and a copy of the will on the Public Guardian and Trustee for Ms. Buscello, on Ms. Buscello and her children, on the Office of the Children’s Lawyer, and on Jack Irwin. At the return of the appointment, Mr. Irwin had ignored the order for service on the Children’s Lawyer as he believed no underage children had an interest in the estate. This was the first of many indications of Mr. Irwin’s willfulness in the administration of this estate.

[10] The warring trustees were also advised to retain an estate solicitor; indeed the will authorized the trustees to retain professional advisors. They could not agree on an estate solicitor. Consequently, the accounts prepared by Jeffrey Irwin were not in proper order and the time spent to pass them occupied substantially more court time than should have been necessary, had the trustees retained estate counsel. The dates on which assets are valued also vary significantly.

[11] At the passing of accounts, the trustees drifted into irrelevancies. They refused to cooperate with one another to obtain an estimate of the income tax liability for the estate, which will further delay the completion of the passing of accounts in an estate that should have been administered years ago. Because the trustees could not agree, the sum of $30,000 from the proceeds of sale of the deceased’s home remain in the solicitor’s trust account since the property was sold on January 27, 2011, instead of being invested or disbursed. I am told the trust account does not bear interest.

[12] As well, there is considerable doubt that Mr. Irwin understands his duties and responsibilities as trustee of Ms. Buscello’s trust under the terms of the will. Ms. Buscello’s occupation of the deceased’s home for two years after his death, thus delaying the sale of the house, is also a source of contention.

[13] Despite her status as executor and trustee, Ms. Ruberry filed a notice of objection to her co-executor’s accounts. It appears this is because Mr. Irwin asserted control over the estate documents and assets. In addition to objecting generally to the form of the accounts not being in compliance with Rule 74.17, she filed the following objections:

1. the accounts did not contain a statement of assets at the date of death;

2. the accounts do not include an account of all money received, but excluding investment transactions recorded pursuant to Rule 74.17(1)(c);

3. the accounts do not include an account of all money disbursed, including payments for trustee’s compensation as required by Rule 74.17(1)(d);

4. it is difficult to know whether investments were made for the estate, but if there were investments, the accounts do not set out the money invested; the return on the investments; and the balance in the investments, as set out in Rule 74.17(1)(e).

5. there is no statement of assets in the estate unrealized at the closing of the accounts, as required by Rule 74.17(1)(f);

6. the accounts do not show the money and investments in the estate at the closing of the accounts, as prescribed by Rule 74.17(1)(g);

7. the accounts do not set out the estate’s liabilities, contingent or otherwise, at the closing of the accounts, as required by Rule 74.17(1)(h);

8. no statement of the compensation claimed by the estate trustee is included in the accounts, contrary to Rule 74.17(1)(i);

9. the accounts do not include the following assets owned by the deceased at death:

• Royal Bank of Canada account at Westfort Branch, jointly held with Jeffrey Irwin in the approximate amount of $26,000;

• insurance policy issued by Great West Life in the amount of $5,203.81;

• U.S. dollar account held at TD Canada Trust in the amount of $2,515.78;

• mining claims registered in the name of the deceased;

• inventory for the contents of the deceased’s home;

10. the accounts do not include a plan to dispose of the deceased’s automobile;

11. the accounts refer to reimbursement to Jeffrey Irwin for invoices in the amount of $31,486.22 whereas the accounts do not confirm that he personally paid these sums;

12. the estate trustee failed to deliver bank statements for the relevant periods for the estate account from which Mr. Irwin claims that expenses of the estate have been paid;

13. the estate trustee failed to terminate telephone and cable service to the deceased’s home until the property was sold nearly three years after the date of death;

14. the estate trustee claims payment for an “extraordinary item” relating to electrical work done at the home of the deceased prior to sale, although he is not an electrician;

15. a payment of $1,059.78 was made to Canada Revenue Agency on September 1, 2013 without explanation;

16. The accounts do not show that outstanding income tax returns have been filed, all taxes have been paid and a clearance certificate from Canada Revenue Agency has been received.

[14] In addition, Ms. Ruberry claims reimbursement for her legal fees in connection with advice on the passing of accounts.

[15] Having received the notice of objections, Mr. Irwin made some alterations to his accounts tendered on the passing, including a statement of assets at the date of death. For example, Mr. Irwin disclosed funds from a life insurance policy paid into the estate account and a U.S. dollar account at TD Trust. The life insurance proceeds were not deposited into the estate account until April, 2013, nearly five years after death.

[16] At the passing of accounts, the parties were able to agree that the deceased’s vehicle was worth $1,500. Certain expenses paid by Mr. Irwin on account of the estate were accepted by Ms. Ruberry: for example, flowers for the funeral, expenses for the church, probate fees and some other small expenses. It was obvious that, due to the acrimony between the trustees, no effort had been made to narrow the issues for the passing of accounts.

[17] Ms. Ruberry submitted the following issues should be addressed by the passing of accounts:

1. the share of Ms. Buscello should be determined;

2. the RBC account should be considered part of the estate;

3. the holdback in the real estate solicitor’s account should be dealt with;

4. expenses for renovation and maintenance of the deceased’s house should be disallowed as not having benefitted the estate;

5. the estate’s income tax liability should be resolved and a clearance certificate obtained;

6. costs of vehicle repair should be disallowed as benefitting the new owner rather than the estate.

As well, Ms Ruberry submitted that the estate would have had $2,000 in 2008 had Mr. Irwin agreed to sell the vehicle to Ms. Ruberry.

[18] In order to determine Ms. Buscello’s share, it is necessary to determine what assets the estate has, what payments should be made by the estate, any outstanding liabilities, and what is left for distribution. Compensation for the estate trustees should be considered before distribution is addressed. I will therefore first consider whether the RBC account passes to Mr. Irwin by right of survivorship, or whether it is an asset of the estate.

Is the RBC Account an Asset of the Estate?

[19] Mr. Irwin disputes that RBC account #07782-0002760 held in the joint names of himself and his father is part of the estate.

[20] The evidence concerning the RBC account the deceased had with Mr. Irwin is scant. Ms. Ruberry testified that the deceased and his late wife had what Ms. Ruberry calls “a working account” at Royal Bank of Canada into which their Old Age Security, Canada Pension and other pension cheques were deposited. She testified that when the deceased’s wife died in 2007, Jeffrey Irwin had his name put on the account now owned by his father.

[21] Ms. Ruberry stated that she and her brother, Jack, were led to believe there was little in the RBC account. She believed that it contained a nominal amount from which expenses would be paid at their father’s death until his estate could be finalized. They were shocked to learn that the balance in the account was $26,827.45 as of the deceased’s death.

[22] Ms. Ruberry also testified that the deceased had a nickname, “Mr. Even Steven,” meaning that he treated his children in an even-handed manner and would have wanted the estate to be evenly divided among the children. She therefore concluded that her father would have intended that the joint account be part of the estate.

[23] This argument is not persuasive. The will shows that the deceased recognized that Judy Buscello had special needs that he wished to provide for. He allocated two-sixths of the estate to her instead of the one-sixth portion the other children were given. He also created a trust structure for the administration of Ms. Buscello’s funds, having regard for her disabilities. As well, he gave instructions to Jeffrey Irwin to look after his sister, Judy.

[24] Apart from a banking document showing the balance in the account at death, Mr. Irwin did not file any other evidence detailing the terms or conditions relating to the account. There is no evidence that Mr. Irwin contributed any funds to the account or assumed any liability for taxes attributable to the account, if indeed there were any.

[25] Mr. Irwin testified that the account was not included in the value of the estate for purposes of assessing probate fees. This evidence as to how he treated the account after his father’s death is self-serving and does not shed light on the deceased’s intention with respect to the account.

[26] Mr. Irwin was named as his father’s attorney pursuant to his power of attorney. He testified that he and his father had an understanding: that his father did not want his daughter, Ms. Buscello, to be homeless. I infer from his statement that his father made funds available in order that Mr. Irwin could look after Ms. Buscello.

[27] The estate trustee’s brother, James Irwin, testified as part of Mr. Irwin’s case. He stated that he, too, had a joint account with his father. He added that his father tried to get the children to save money. This evidence sheds no light on the deceased’s intention with respect to the joint account with Jeffrey Irwin. James did not indicate what type of account he had with his father, how much was in it, whether it was closed out during the deceased’s lifetime, whether James drew on it, or whether it came with any expectations or responsibilities. It is impossible to ascertain any pattern of conduct on the part of the deceased from which his intention could be inferred based on this evidence.

[28] The leading case dealing with joint accounts and the right of survivorship is Pecore v. Pecore, 2007 SCC 17. In Pecore, the Supreme Court of Canada set out the presumptions that trial judges must consider in dealing with joint accounts and investments.

[29] First, the presumption of advancement applies to an underage child where assets of this nature are concerned; that is, that a parent is presumed to intend to make a gift to a minor child of funds in a joint account. The court concluded that the presumption of advancement applies to children under the age of majority because parents are legally obligated to support their underage children.

[30] With respect to gratuitous transfers to children over the age of majority, the presumption is that the parent intended a resulting trust to arise, meaning that funds in a jointly held account would become part of the deceased’s estate upon death. The court adopted this approach because (with some statutory exceptions), parents are not obliged to support their adult children. The court also noted that it is common practice for aging parents to transfer their assets into joint accounts with adult children in order for the adult child to assist in managing the parent’s financial affairs.

[31] The court held that where the presumption of resulting trust applies to a joint account, it falls to the surviving account holder to prove that the deceased intended to gift the right of survivorship to the survivor. If the joint account holder cannot do so, the balance of the account will be considered to be part of the deceased’s estate, and distributed according to his will: para. 53.

[32] These presumptions are rebuttable, meaning that it is open to the court to draw a contrary conclusion upon persuasive evidence of the deceased’s intention. The standard of proof is the civil standard: proof on a balance of probabilities: para. 43.

[33] Where a gratuitous transfer is being challenged, as in this case, the court must first determine the proper presumption to apply and then weigh the evidence about the deceased’s intention to determine whether the presumption has been rebutted: para. 55. Here, the presumption is that the money in the joint account was part of the estate assets, as a resulting trust. The onus is therefore on Mr. Irwin to prove that the deceased intended to gift the funds in the joint account to him.

[34] I find that Mr. Irwin has not met that onus. No evidence has been adduced as to terms and conditions applicable to the joint account setting out the right of survivorship.

[35] Mr. Irwin was the deceased’s attorney pursuant to his power of attorney and assisted his father in the management of his affairs when he was elderly and infirm. By his own testimony, Mr. Irwin indicated that his father did not want his daughter, Ms. Buscello, to be homeless. He set out an expectation that Mr. Irwin would use his funds to assist Ms. Buscello. I therefore conclude that the deceased intended that the funds would be available for her care and not for Mr. Irwin’s exclusive use. I find and declare that the funds in the RBC account #07782-0002760 of $26,827.45, together with any accrued interest thereon, form part of the deceased’s estate.

Mining Claims

[36] The trustees discovered that the deceased was involved in some dated mining claims during his lifetime. No evidence was adduced on the status of these claims or their value, if any. I am therefore unable to determine the value of the mining claims.

Household Contents

[37] Exhibit 3 contains an inventory of the furnishings of the deceased’s house. The value of the contents of the home is not listed on the assets at the date of death and no values have been adduced on the passing of accounts. Ms. Ruberry wanted the contents sold at an estate sale. The inventory, with which Ms. Ruberry did not take issue, shows that furnishings were generally distributed to the beneficiaries or left for the purchasers of the house. Consequently, I cannot determine the value for the household contents, which have been distributed.

Assets Owned at the Date of Death

[38] I find that the assets owned at the date of death, being August 28, 2008, are as follows:

TD savings account 6048 3308998 $ 54,259.89

TD savings account 6048 7179259 (U.S. Dollars) 2,540.97

GIC 58,599.53

RIFF 19,373.15

TD Waterhouse 16,589.75

GC 1253 19,718.05

House (actual sale price) 132,000.00

Automobile 1,500.00

RBC joint account 26,827.45

Furnishings unknown

Mining claims __unknown

Total $331,408.79

Received by the Estate as of January 15, 2014

[39] I find that there was received as of January 15, 2014:

Net gain to the RIFF $ 314.01

Interest on GICs and bank accounts 6,134.91

CPP death benefit 2,500.00

Closure fee on sale 31.95

Great West Life insurance 5,203.81

Total $14,184.68

Total received by January 15, 2014 before authorized disbursements and distributions

[40] The total received to January 15, 2014 is therefore:

Assets owned at the date of death $331,408.79

Received as of January 15, 2014 14,184.68

Total $345,593.47

Claims for Reimbursement Made by Mr. Irwin

[41] Mr. Irwin claims reimbursement of the sum of $31,486.22 expended between 2008 and 2011 for the benefit of the estate. Most of these expenses relate to the repair or maintenance of the deceased’s house. Ms. Ruberry objects to the estate reimbursing these claims.

[42] The law has long recognized the entitlement of a trustee to claim from the estate out-of-pocket expenses properly incurred on behalf of the estate. Section 23.1 of the Trustee Act, R.S.O. 1990, c. T.23 specifically provides:

A trustee who is of the opinion that an expense would be properly incurred in carrying out the trust may,

(a) pay the expense directly from the trust property; or

(b) pay the expense personally and recover a corresponding amount from the trust property. 2001, c. 9, Sched. B, s. 13 (1).

[43] In Widdifield’s Carmen S. Theriault, ed. Widdifield on Executors & Trustees, 6th ed. (Toronto: Carswell, 2013), 4.1, the author discusses some principles relating to reimbursement of a trustee for expenses incurred on behalf of the estate:

… Whether an expense is proper may depend on such factors as the nature of the estate, the character of the services rendered, whether the trustee was properly exercising the powers given to him or her when they were incurred, whether the services are contracted in good faith and with reasonable judgment, whether with or without the advice of counsel, whether they are necessary to protect and to preserve the estate and to carry out the provisions of the will, and whether they are incurred prior to or after probate is granted. If expenses are unnecessarily incurred, the executor must show that he or she acted in good faith and had good reason to believe the expenditures for which he or she claims credit were necessary for the benefit of the estate at the time incurred. On a passing of accounts, the onus is on the trustee to establish that the expenses were properly incurred….[citations omitted].

[44] In this case, two circumstances must be considered when assessing whether Mr. Irwin’s claims for reimbursement from the estate are reasonable:

1. the delay in listing the deceased’s house for sale; and

2. the repairs and renovations that were done to the house prior to sale.

[45] A rule of thumb applies to administration of estates: that executors are entitled to a year in which to wind up the estate. Of course, this is not a hard and fast rule as the nature of estate administration may vary widely.

[46] The deceased’s house was a four bedroom, three bathroom residence. The evidence establishes that, over Ms. Ruberry’s objections, Mr. Irwin permitted Ms. Buscello to stay in the house between August, 2008 and August, 2010 despite there being no provision in the will for her to do so. At least one realtor advised that the house could not be marketed with Ms. Buscello in it. Ms. Ruberry testified that Ms. Buscello was hostile, including to her own parents. Still, Mr. Irwin did not insist that Ms. Buscello vacate the property.

[47] There is no evidence that, apart from Ms. Buscello’s occupancy, there were particular difficulties in marketing the residence. Ms. Ruberry testified and I accept that the first realtor, Mr. St. Jarre, brought two offers to the trustees. Had Ms. Buscello vacated the house upon her father’s death or within a reasonable time thereafter, the property could probably have been sold in 2009, rather than 2011.

[48] Ultimately, Ms. Ruberry gave Mr. Irwin a deadline to list the house. Ms. Ruberry objects to the costs of maintaining the house for the benefit of Ms. Buscello, particularly because she believes that Ms. Buscello’s occupation made it impossible to list the house for sale. She also submits that the estate was not responsible to provide housing for Ms. Buscello.

[49] The cost of Ms. Buscello’s occupation at the residence totalled $11,063.23 for the 25 month period of her occupation when gas, cable, telephone, hydro, water, hot water tank rental, taxes and some minor maintenance are considered. It is Ms. Ruberry’s position that Ms. Buscello’s interest in the estate should be charged this sum as the cost to the estate of her occupation between 2008 and 2010.

[50] The Public Guardian and Trustee did not appear at the passing of accounts and was not on notice of Ms. Ruberry’s position that Ms. Buscello’s trust be charged with occupation rent. Ms. Ruberry is ordered to serve the Public Guardian and Trustee with a copy of these reasons forthwith and file proof of service in the court file. The Public Guardian and Trustee shall have 30 days from the date of service to present written submissions as to why Ms. Buscello’s trust should not be charged costs for her occupation of the deceased’s residence at 1405 Moodie Street in Thunder Bay between August 2008 and September, 2010.

[51] The cable services provided to the deceased’s at his care home at Pinewood Court and paid by Mr. Irwin are a reasonable expense of the estate and shall be reimbursed to Mr. Irwin.

[52] The following expenses are also reasonable and shall be reimbursed by the estate to Mr. Irwin:

a) elevator pension reimbursement $ 53.12

b) Pinewood cable 195.04

c) Union gas (2008) 364.32

d) hydro (2008) 185.51

e) water 152.22

f) taxes (2008) 670.35

g) house maintenance 10.14

h) miscellaneous costs associated with funeral 113.69

i) extraordinary items:

• legal fees for will 475.47

• funeral flowers 349.75

• funeral home 1,256.75

• fees for church 700.00

• legal services to trustees (exclusive of complaint re: care) 2,241.43

j) car maintenance 208.89

k) gas (2009) 1,732.22

l) hydro (2009) 550.15

m) water 475.77

n) hot water tank rental 268.06

o) taxes 2,781.39

p) safety deposit box 68.25

q) gas (2010) 1,237.41

r) hydro (2010) 448.67

s) water 356.84

t) hot water tank rental 211.45

u) taxes 1,464.10

v) house maintenance 190.31

w) hydro (2011) 192.13

x) water 74.02

y) Total $17,027.45

[53] In view of the fact that the deceased was being cared for at Pinewood Court prior to his death, there can be no justification for maintaining either telephone or cable services at his house. These services should have been terminated when the deceased moved out of the house. Mr. Irwin’s request for reimbursement of these expenses fixed at $1,686.78 is dismissed.

[54] Mr. Irwin claims reimbursement of $3,775 for costs of probate plus the $6.50 fee for the draft. These funds were paid out of the RBC account that I have concluded is an asset of the estate. Therefore, the claim for reimbursement is disallowed. This is an expense of the estate, and should be shown as a disbursement paid.

[55] Ms. Ruberry objects to expenses incurred to repair and renovate the property before it was sold. The major expenses involve replacing the front step and redoing the knob and tube wiring in the house.

Widdifield, states at para.4.8.1 that:

an executor is responsible to see that trust premises do not fall into decay for want of repair but it is difficult to say how far an executor or administrator is justified in expending money in that regard. If a property has fallen into bad repair, the question will be whether it is worthwhile to do the repairs. [Citation omitted].

[56] Were the costs incurred for repair and maintenance of the house until sale reasonable?

[57] Mr. Irwin tendered receipts for materials for house maintenance completed in 2009 totalling $3,340.49. Ms. Ruberry objected to the hiring of family members to do repair work. In my view, the labour costs were minor. This was not an unreasonable approach.

[58] While some of the maintenance expenses were for light bulbs, paint and toilet replacement at a minor cost, a significant part of the expense was for dismantling the existing front step and railing at the home and replacing the steps, pouring a new sidewalk and laying down sod. The railing was never replaced. Ms. Ruberry felt that the house should be sold in its existing condition.

[59] At para. 4.8.1 of Widdifield, the authors note that a power to repair did not give authority to rebuild in the case cited. In this case, while minor repairs in preparation for sale are reasonable, major construction is not. The original front steps were serviceable, and there is no evidence that replacing them increased the value of the property, to the benefit of the estate. The estate is liable to reimburse Mr. Irwin $1,586.67 for the costs of minor maintenance but not for the costs of replacing the step and sidewalk work.

[60] Mr. Irwin also tendered invoices in the amount of $5,650 for the cost of rewiring the deceased’s home in 2010. Ms. Ruberry objects to reimbursement of these expenses on the basis that they were not reasonable and did not benefit the estate.

[61] The evidence of the trustees about this point is confusing and contradictory and no doubt reflects the poor communication and lack of trust that characterizes their relationship. However, the documentary evidence sheds some light on this issue.

[62] The deceased’s house contained knob and tube wiring. An offer to purchase the home was conditional upon a satisfactory inspection. In the course of negotiation, the purchasers inserted a condition that the knob and tube wiring be removed at the vendor’s cost and that copies of the inspection be produced upon completion. The prospective purchaser considered securing her own contractor to do the work, at the estate’s cost. She obtained an estimate for $7,000 plus HST.

[63] Mr. Irwin decided that he and family members could do the work for less and he set about doing so. The work was done promptly and passed inspection. The cost was $5,650. Although the offer made was ultimately withdrawn and the sale did not go forward, it is likely that this work would have been required in order to market the house to other prospective purchasers. In my view, this work was necessary. It was done at a reasonable cost. The fact that some of the work was done by family members does not make it unreasonable. The estate shall reimburse Mr. Irwin the sum of $5,650 for electrical work.

[64] Total reimbursements owed to Mr. Irwin by the estate are therefore $24,264.12.

Disbursements as Approved

[65] The following disbursements are approved:

Bank fees (U.S.) (dormant fees) $20.00

Bank fees (U.S.) 7.87

Jock Irwin 847.00

Lakehead Monument 1,246.76

Jock Irwin 787.32

City of Thunder Bay, 691.00

Thunder Bay Hydro 46.80

Reliance Home Comfort 77.04

City of Thunder Bay 733.05

Intact Insurance 77.42

Union Gas 160.00

Tax adjustment on sale 209.00

Commission on sale of house 7,458.00

Legal fees (John McDonald) 976.77

Tax arrears 23.78

Intact Insurance 77.42

Union Gas 160.00

Probate fees 3,775.50

Bank draft 6.50

Reimbursement to Mr. Irwin 24,264.12

Income Tax 1,059.78

Total $42,743.90

Balance in the Estate

[66] The balance after the approved disbursements were paid as of January 15, 2014 is therefore $302,849.57.

Distributions to Date

[67] Mr. Irwin has not identified a trust fund established to benefit Ms. Buscello and no distribution has been made to her. The portion to set up her trust is therefore a liability of the estate and must be shown as such.

[68] In 2009, the estate made an interim distribution of $17,300 to each of the beneficiaries except the Buscello trust. In 2011, Mr. McDonald paid $15,550.10 to each of the same beneficiaries from the proceeds of sale of the deceased’s house. In addition, Mr. McDonald paid the sum of $31,100.10 to Jeffrey Irwin in trust for Judy Buscello. The trust statement contains a tiny error; it should have credited Ms. Buscello with twenty cents, not ten: in other words, $31,100.20. These distributions were not made by the estate directly, and they do not appear in Mr. Irwin’s accounts.

[69] For reasons that are not explained, a trust fund was not created for Ms. Buscello; nor was a 2/6 share of the interim distribution made to the other beneficiaries in 2009 invested on her behalf. An interim distribution of $34,600 representing a 2/6 interest in the estate should have been invested in a trust fund for her at that time. Mr. Irwin’s executive summary indicates: “Judy Bascello [sic] 2/6 share left invested in the general proceeds of the estate which equates to $34,600.”

[70] There is no indication in Mr. Irwin’s accounts where these funds are. This is not shown as a distribution; nor is it shown as a liability of the estate.

[71] The actual distributions to date are as follows:

Jack Irwin – January 14, 2009 $17,300.00

Joan Ruberry – January 14, 2009 17,300.00

James Irwin – January 14, 2009 17,300.00

Jeffrey Irwin – January 14, 2009 17,300.00

James Irwin – February 3, 2011 15,550.10

Jeffrey Irwin – February 3, 2011 15,550.10

Jack Irwin – February 3, 2011 15,550.10

Joan Ruberry – February 3, 2011 15,550.10

Jeffrey Irwin – value of vehicle 1,500.00

Total $132,900.40

Assets and Investments as of January 15, 2014

[72] I find that the assets in the estate as of January 15, 2014 are as follows:

TD savings account 6048 3308998 $87,779.92

TD savings account 6048 7179259 (U.S. dollars) $2,515.78

TD estate account 6338759 $20,569.57

John McDonald, in trust $30,000.00

RBC account #07782-0002760 unknown

Automobile $1,500.00

Furnishings unknown

Mining claims unknown

Total $142,365.27

Outstanding Liabilities as at January 15, 2014

[73] As the income tax liability for the estate has not been determined, it is not possible to finalize the estate. In my view, until this is resolved and until the trust fund is set up for Ms. Buscello, it would be premature to determine trustee compensation, if any.

[74] Ms. Ruberry claimed legal costs for Jock [sic] Irwin in the amount of $2,260. Mr. Jack Irwin did not appear at the passing of accounts. There is no evidence as to what these legal fees involve. Consequently, the claim is dismissed.

[75] The outstanding liabilities of the estate are set out below.

Income tax unknown

Trust liability for Judy Buscello $65,700.20

Trustee compensation unknown

Legal fees unknown

Total $65,700.20

[76] The trustees shall direct Mr. McDonald to pay into the estate account the money he currently holds in trust for the estate. Mr. Irwin shall produce to Ms. Ruberry proof that this deposit has been made. The trustees are also ordered to determine the estate’s income tax liability and to pay such liability and to produce a clearance certificate upon the further passing of accounts.

[77] Mr. Irwin is ordered to produce to Ms. Ruberry and file with the court proof of the balance in the RBC joint account as of January 15, 2014 and on the final passing of accounts. He is also ordered to set up a trust fund for Ms. Buscello and to pay the estate’s liability into the trust fund and to provide details of these transactions to Ms. Ruberry. The Trustees are ordered to file a draft set of interim accounts to January 15, 2014, in proper form, based on these reasons.

[78] Mr. Irwin and Ms. Ruberry are to cooperate with each other to produce final accounts for the estate detailing the transactions after January 15, 2014, upon a final passing of accounts. These shall detail the final assets and liabilities of the estate including the trust account set up for Ms. Buscello, the estate’s tax liability, and any legal fees claimed. The trustees are ordered to seek an appointment for a final passing of accounts. The accounts on the interim passing and the draft final accounts are to be filed fifteen days before the appointment is returnable. Allow one day for the final passing of accounts.

___“Original Signed By”

Madam Justice H.M. Pierce

Released: March 19, 2015

Summary on Interim Passing of Accounts

on the Estate of John Davidson Irwin as of January 15, 2014

Estate Assets On A Cash Basis:

Para.

Assets at Date of Death (August 24, 2008) $331,408.79 38

Received between August 24, 2008

and January 15, 2014 $14,184.68 39

Total Received $345,593.47 40

Paid Out between August 24, 2008

and January 15, 2014

a) Approved Disbursements $42,743.90 65

Balance after Approved

Disbursements Paid 302,849.57 66

b) Distributions to beneficiaries 132,900.40 71

Balance Jan 15, 2015 after

disbursements and

Distributions Paid out 169,949.17

Actual Assets and Investments held On Jan 15, 2015 72

Money in the bank $110,865.27

McDonald trust account 30,000.00

Automobile 1,500.00

Occupation Rent owing unknown

RBC Account unknown

142,365.27

Difference 27,583.90

Anticipated Changes

Receipts

Occupation rent, Ms. Buscello 11,063.00 49

RBC Account unknown

Outstanding liabilities

Income tax unknown 75

Trust Liability, Buscello 65,700.70

Legal fees unknown

Trustee Compensation unknown

CITATION: Irwin v. Ruberry, 2015 ONSC 1821

COURT FILE NO.: CV-14-0016

DATE: 2015-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JOHN DAVIDSON IRWIN, deceased.

B E T W E E N:

Jeffrey Irwin,

Personally, as Estate Trustee

• and -

Joan Ruberry,

Personally, as Estate Trustee

REASONS ON CONTESTED PASSING OF ACCOUNTS

Pierce J.

Released: March 19, 2015

/cs