Court File and Parties
COURT FILE NO.: 16-70654 DATE: 2017/05/01 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
IN THE ESTATE OF WILLIAM STANDLEY LARWILL
James William Larwill, personally and in his capacity as an Estate Trustee of the Estate of William Standley Larwill Applicant
– and –
Anita Christine Larwill, Ernest Standley Larwill in their personal capacity as Estate Trustees of the Estate of William Standley Larwill and Allan Raymond Larwill Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Peter Liston for the respondent, Anita Larwill (the moving party) No one appearing for the applicant or for the respondents other than Anita Larwill
HEARD: April 28, 2017
Endorsement
CORTHORN J.
Background
[1] The respondent, Anita Larwill (“Anita”) is the Estate Trustee of the Estate of William Standley Larwill (the “Estate”). This motion is for relief related to the Estate, in particular a residential property at 514 Roosevelt Avenue in the City of Ottawa (the “Property”).
[2] In February 2017, an order was made for relief related to the administration of the Estate, including with respect to the property (the “Order”). The Order includes the following terms:
THIS COURT ORDERS that Anita Christine Larwill shall make reasonable efforts to transfer and convey all right, title and interest to the property at 514 Roosevelt Avenue in the City of Ottawa (“the Property”) to James William Larwill and Ernest Standley Larwill as Tenants in Common each having a 50 % interest in the Property by no later than four weeks after receipt of the Certificate of Appointment of Estate Trustee with a Will . . .
THIS COURT ORDERS that Anita Christine Larwill shall make reasonable efforts to sell all of the contents of the Property, and divide the proceeds of sale between James William Larwill and Ernest Standley Larwill by no later than six weeks after receipt of the Certificate of Appointment of Estate Trustee with a Will or, if agreed to in writing by James William Larwill and Ernest Standley Larwill, otherwise distribute the contents of the Property in a manner agreed to by James William Larwill and Ernest Standley Larwill.
THIS COURT ORDERES that if Anita Christine Larwill is unable in any way to effect the terms of paragraphs 5 and 6 of this Order, she shall bring an Application for Partition and Sale and such further and other relief as is necessary by no later than eight weeks after the issuance of Certificate of Appointment of Estate Trustee.
[3] Anita’s evidence on the motion is that she applied for and received the Certificate of Appointment of Estate Trustee with a Will on March 7, 2017. She is named as the sole Estate Trustee.
[4] It is also Anita’s evidence that she has, since that date, been making reasonable efforts to fulfill the terms of paragraphs 5 and 6 of the Order quoted above. She has secured the co-operation of James William Larwill (“James”) with respect to the matters referred to in paragraphs 5 and 6 of the Order. However, she has been unsuccessful, despite reasonable efforts on her part, in securing the co-operation of Ernest Standley Larwill (“Ernest”).
[5] The deadline by which to fulfill paragraphs 5 and 6 of the Order is eight weeks from March 7, 2017 – effectively the end of April 2017. It is because of her inability to secure Ernest’s co-operation and the eight-week deadline that Anita brings this motion for an order permitting her to sell the Property and to sign documents as may be required to facilitate the sale of the Property.
[6] From my review of Anita’s affidavit filed in support of the motion, it is clear that she and her brother James have been attempting to deal with the consequences of their late father’s death and the administration of the Estate in a manner that is respectful of and sensitive to their sibling, Ernest. It is also clear that Ernest is not co-operating with Anita in her role as Estate Trustee.
Relief Required to Administer the Estate
[7] Unfortunately, the motion which Anita brings is not the next step in the process. That next step is dictated by paragraph 7 of the Order. Pursuant to paragraph 7, Anita is required to bring an application for partition and sale of the Property. The application would bear a title of proceeding different from the title of proceeding in this matter.
[8] In addition the application would be an originating process. This motion is not an originating process. As an originating process, the application for partition and sale, once issued, must be personally served on the respondents named therein. It is anticipated that Ernest will be a respondent named in the application.
[9] Ernest was not personally served with the motion record in this matter. He was not entitled to service of the motion record; he failed to deliver a notice of appearance to the notice of application. He was, however, personally served with a copy of the notice of motion. In addition, a copy of the motion record was sent to him by courier. The service on Ernest of a copy of the notice of motion and the provision to Ernest of a copy of the motion record are, in my view, evidence of the efforts being made by Anita, in her role as Estate Trustee, to be respectful of and co-operative with Ernest.
[10] In all of the circumstances, it was not possible to grant the relief requested by Anita on the motion. She is required to proceed by way of an application for partition and sale as directed by paragraph 7 of the Order. With the eight-week deadline for that application to be made expiring at the end of April, Anita requires additional time within which to bring the application. I find it reasonable in the circumstances to grant Anita the additional time she requires in that regard.
[11] Anita is granted an extension from the end of April 2017 to May 26, 2017 within which to bring an application for partition and sale of the Property. By “bring” I mean to have the notice of application issued and thereafter to deliver the notice of application and the application record, with the application record identifying a return date for the application. The return date may, if necessary, be subsequent to May 26, 2017.
[12] There is one other deadline set in the Order that is affected by reason of Anita having to pursue an application for partition and sale of the Property. Paragraph 12 of the Order provides that Anita “shall distribute all remaining bequests and the residue of the Estate, less a holdback of $20,000.00 within eight months of the receipt of the Certificate of Appointment of Estate Trustee with a Will.” When that deadline was set, it was clearly contemplated that all matters related to the Property, including partition and sale if required, would be addressed prior to the distribution of “all remaining bequests and the residue of the Estate”.
[13] I therefore find it reasonable to grant Anita an extension to December 22, 2017 within which to fulfil the obligations set out in paragraph 12 of the Order.
Summary
[14] In summary, I order as follows:
- Anita Christine Larwill, in her capacity as the Estate Trustee of the Estate of William Standley Larwill (the “Estate”), shall be granted an extension of time from April 30 to May 26, 2017 within which to bring an application for partition and sale of 514 Roosevelt Avenue in the City of Ottawa.
- Anita Christine Larwill, in her capacity as the Estate Trustee of the Estate of Standley Larwill, shall be granted an extension of time from November 7 to December 22, 2017 within which to distribute all remaining bequests and the residue of the Estate, less a holdback of $20,000.00.
[15] I note that Ernest’s failure to respond to these proceedings has already resulted in awards of costs against him, with the costs to be paid from his share of the residue of the Estate. The Order provides that Ernest shall pay $10,000 in costs to James and $5,000 in costs to Anita.
[16] I have not ordered costs of the motion before me, as it is not the proceeding contemplated by paragraph 7 of the Order. Given the terms of the Order, it is clear that Ernest is at risk of further adverse costs awards because of his conduct with respect to the Property. I would expect that risk to increase if Ernest continues to fail to co-operate with respect to the administration of the Estate.
[17] No doubt the loss of their father is difficult for each of Anita, James, and Ernest. The administration of an estate is not a pleasant task. Ernest’s failure to co-operate is only serving to increase the difficulties for him and his siblings and to make the tasks with which Anita is faced even more unpleasant than they otherwise would be. I hope that Ernest will find it in himself to co-operate with his siblings from this point forward.
Madam Justice Sylvia Corthorn Date: May 1, 2017
COURT FILE NO.: 16-70654 DATE: 2017/05/01 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
IN THE ESTATE OF WILLIAM STANDLEY LARWILL James William Larwill, personally and in his capacity as an Estate Trustee of the Estate of William Standley Larwill Applicant
– and –
Anita Christine Larwill, Ernest Standley Larwill in their personal capacity as Estate Trustees of the Estate of William Standley Larwill and Allan Raymond Larwill Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Peter Liston for the respondent, Anita Larwill No one appearing for the applicant or the respondents other than Anita Larwill
HEARD: April 28, 2017