COURT FILE NO.: CV-16-0366 DATE: 2016-09-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Safronuk, Estate Trustee of the Estate of William Safronuk,
Terry Gilbart, for the Applicant
Applicant
- and -
Steven Safronuk, Estate Trustee of the Estate of William Safronuk, and Brenna Safronuk and Drew Safronuk,
Steven Safronuk, representing himself
Respondents
HEARD: September 22, 2016, at Thunder Bay, Ontario
Platana J.
Reasons On Application
[1] The Applicant, David Safronuk, and the Respondent Steven Safronuk are named as a co-executors and trustees of the estate of their father, William Safronuk, who died February 20, 2016. David Safronuk brings this application seeking:
(a) directions as to the validity of the deceased’s testamentary documents and the procedure for obtaining a Certificate of Appointment of Estate Trustee With a Will; (b) an Order for the removal of the Respondent, Steven Safronuk, as Estate Trustee; (c) an Order for the Respondent, Steven Safronuk, to produce the original will, affidavit of execution of the will, and codicil of the deceased, William Safronuk; (d) an Order requiring the Respondent, Steven Safronuk, to produce account statements from Northern Credit Union for the period of time six months prior to the deceased’s death; (e) an Order as to costs; (f) such further and other Order as to this Honourable Court seems just.
Background
[2] William Safronuk executed a formal will, duly executed, dated April 12, 1990, naming his wife, Elizabeth, as Executor, and Steven and David as alternate Executors and Trustees. All property was left to Elizabeth. William was predeceased by Elizabeth. In that event, according to this will, the entirety of the estate was to be left to David and Steven equally.
[3] In 2010, William Safronuk signed a handwritten, unwitnessed document identified as “Amendment A June 2/2010.” He described that document as “Last Will and Testament for William Safronuk.” No executor is named. No previous will is revoked. The full text of that document is:
“I leave Camp at Cloud Lake to my Grandchildren Brenna and Drew Safronuk. Grandma jewelry is left to Brenna as per Grama’s wishes.
I leave $25,000.00 each to Brenna and Drew to used to purchase a home when they are ready to do so.
The balance of Estate to be divided between Steven and David. Money at Credit Union, mutual at Bank of Montreal - Ft Wm Road, and house to be sold and divided.
Wm. Safronuk”
The parties agree that this document is in their father’s handwriting.
[4] One of the issues in dispute between the two named Trustees focuses on the interpretation of this document. The Applicant submits that:
“If it is determined that Exhibit ‘1’ is the last will and Exhibit ‘2’ is a codicil, then I intend to proceed with the part of this application requesting the removal of the respondent as an estate trustee so that I may proceed to make application for a Certificate of Appointment With a Will.” If it is determined that Exhibit ‘2’ replaces Exhibit ‘1’ as the last will, then I will need direction from the Court in that I am informed that because Exhibit ‘2’ does not appoint a trustee(s), my brother and I, as the next-of-kin, are entitled to apply. I still intend to proceed on the basis that I be appointed sole trustee but I will need directions from the Court on how to so proceed.”
[5] The Respondent submits that the 2010 document is invalid. He argues that it was not followed in as much as the property at Cloud Lake was not given to Brenna and Drew, but rather to the Applicant and his wife. He further submits that although he did not learn of this until this application was started, the jewellery was given to Brenna prior to William’s death. Further, he states that his father added him to his chequing account at the Credit Union, making it a joint account.
[6] Both parties clearly seek a determination of the status of the two testamentary documents. Steven, the Respondent, argues the June 2010 “Amendment” is an alteration to the will and as such is not properly executed and should be given no effect. David, the Applicant, argues that it should be treated as a codicil.
Removal of Steven as Estate Trustee
[7] The Applicant relied on sections 5 and 37 of the Trustee Act:
5(1) The Superior Court of Justice may make an order for the appointment of a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
(2) An order under this section and any consequential vesting order or conveyance does not operate as a discharge from liability for the acts or omissions of the former or continuing trustees.
37(1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.
[8] The principles that guide the Court’s decision to remove estate trustees are set out in Radford v. Radford Estate, [2008] O.J. No. 3526 (S.C.J.) at para. 97 and St. Joseph’s Health Centre v. Dzwiekowski, [2007] O.J. No. 4641 (S.C.J.) at para. 25 and are summarized as follows:
- The court will not lightly interfere with the testator’s choice of estate trustee.
- Clear evidence of necessity is required.
- The Court’s main consideration is the welfare of the beneficiaries.
- The estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.
[9] It is argued that the relationship between the Co-Trustees in this matter before the Court is not conducive to an efficient and expedient administration of the estate. This is apparent in the correspondence which has been exchanged between the parties.
[10] It is argued that in taking the money from the credit union joint account, which account was a resulting trust, the Respondent has acted in his best interests and not in the interest of the beneficiaries.
[11] It is further argued that in refusing to recognize the codicil, the Respondent is also acting in his own best interests because should the codicil be found to be invalid, the Respondent will receive a greater share of the estate.
[12] The principle focus of my decision as to removal of the Respondent as Trustee is on the allegation that there is an inability on the part of these Trustees to cooperate.
[13] I rely on the Respondent’s statement in paragraph 35 of his affidavit: “Originally, I thought it would be possible to act as joint Trustees. He can no longer be trusted.” He then lists a number of reasons which he relies upon to substantiate this allegation.
[14] He goes on to state in paragraph 36: “I do not feel he is capable of being a joint Trustee because of his previous actions. I believe he will make it difficult by…” He again lists reasons which he says provide the basis for that statement.
[15] Based on my review of the material and the nature of the dispute itself, there is a clear inability for these Trustees to cooperate. This is shown in their inability to place an application for the probate before the court.
The Testamentary Documents
[16] The formal will, duly executed and witnessed, is not contested. It is the nature of the subsequent document found that is in issue.
[17] I summarize the relevant principles from Sheard’s Probate Practice, 4th ed. at pp. 79-81:
An alteration to a will must be distinguished from a holograph codicil.
Alteration to a will to a formal will can be validly made after the execution of the will only if the alteration is signed by the testator and attended and signed by two witnesses.
A holograph codicil may be sufficient to amend a formal will. The test is whether the nature of the changes intended can be determined by reading the handwritten words independently of the will.
[18] A holograph will is valid where it is wholly in the testator’s handwriting and signed by the testator. The presence and signature of a witness is not required: Succession Law Reform Act, s. 6.
[19] The last testamentary disposition of the testator operates to the exclusion of previous testamentary dispositions. This rule operates where the subsequent testamentary disposition is in the form of a holograph will or codicil, so long as it is a valid holograph. Put simply, a valid holograph will or codicil can revoke all or part of a valid formal will.
[20] However, as noted in MacDonnell and Sheard at page 97, the subsequent holograph will or codicil does not necessarily revoke the entirety of the will:
The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one unless the latter expressly or in effect revokes the former, or the two are incapable of standing together. Any number of instruments, whatever their relatives dates or in whatever form they may be (so long as they are clearly testamentary), may be admitted to probate as together containing the last will of the deceased. A later will or codicil partially inconsistent with one of earlier date will revoke it in so far as they are inconsistent.
[21] At page 99 of Probate Practice: “Intention determines whether the subsequent codicil revokes the entire will. Even where the subsequent codicil contains a residuary clause, the intention to revoke the entire will is inconclusive.”
The June 2, 2010 Document
[22] The Respondent has argued that the codicil is not valid because the camp and the jewellery had already been disposed of. He appears to not understand that a testator in a will may dispose of property noted in the will prior to death. In that event, the will or codicil itself is not invalid. A testator can only will something he possesses at the time of death. If the property has been disposed of then that gift fails. However, the balance of any bequest in the document remains valid.
[23] In this case, the bequest of the camp to Brenna and Drew and the jewellery to Brenna have already been carried out prior to the testator’s death. This does not invalidate the bequest of the $25,000.00 to each of Brenna and Drew.
[24] The arguable issue in this estate appears to be the nature of the bank account. The Applicant relies on the Supreme Court of Canada decision in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, for the proposition that upon death, a joint account becomes a resulting trust and is to be dealt with as an estate asset, unless the deceased is a spouse or minor child, or unless otherwise proven by the claimant of the joint account. The question being: Does it pass to Steven, a joint account holder, or is it part of the estate? In Pecore, the Supreme Court of Canada determined that the standard of proof to rebut the presumption of advancement and the competing presumption of resulting trust is the ordinary burden of the balance of probabilities.
[25] In Feeney: Canadian Law of Wills at ch. 1 at 1-34.
Joint Property
Presumption of Resulting Trust
The mere deposit of money in a bank in the joint names of the depositor and alleged house is insufficient, by itself, to constitute a gift. In the absence of convincing evidence of the intention to make a gift, there will be a resulting trust in favour of the estate of the funds to which the survivor holds only the legal title. A party who puts the status of funds in a joint account into issue as claiming a right of survivorship is required to provide evidence to allow the court to make a decision. In order to make the determination as to whether there is a gift to the survivor or a resulting trust in favour of the estate, it is necessary for the court to have evidence to show, at the very least, the dates the accounts were opened, what documents were signed at that time, who received the bank statements, who deposited funds, who withdrew funds and wrote cheques, and the balance as of the date of death.
[26] Once the status of joint accounts is put in issue, those who rely on the rights of survivorship are required to produce evidence to allow the court of probate to make a determination. The law does not automatically find a gift to the survivor.
[27] In order to make the determination as to whether there is a gift to the survivor or a resulting trust in favour of the estate, it is necessary for the court to have evidence to show the date the account was opened, what documents were signed at that time, who received the bank statements, who deposited funds, who withdrew funds and wrote cheques and for what purpose, and the balance as of the date of death. This issue should be determined by adjourning this part of the application pending receipt of the documents ordered to be produced herein. Either party shall be entitled to bring this issue forward on 15 days’ notice.
Findings
[28] On the basis of my review of the cross-allegations in the material filed, and the statements I have referred to, I am satisfied that the will and codicil are valid testamentary documents.
[29] I am satisfied that there should be an Order that:
a) Steven Safronuk be removed as an Estate Trustee; b) Steven Safronuk is to produce the original will, affidavit of execution of the will, and codicil of the deceased, William Safronuk; c) the Respondent, Steven Safronuk, is to produce account statements from Northern Credit Union for the period of time six months prior to the deceased’s death; and d) the documents in b) and c) shall be produced within 10 days.
[30] Costs of this application shall be borne by the estate.
[31] I am not seized of this issue.
__________ ”original signed by”_ ___ The Hon. Mr. Justice T.A. Platana