CITATION: Simms v. Simms, 2017 ONSC 6624
COURT FILE NO.: 17-72333 ES
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF WILLIAM MALCOLM SIMMS
RE: MICHAEL JAMES SIMMS and BEVERLY JOAN HESS IN THEIR CAPACITY AS ESTATE TRUSTEES OF THE ESTATE OF WILLIAM MALCOLM SIMMS and WILLIAM RAYMOND SIMMS, GORDON JOHN SIMMS, PATRICIA ANNE SIMMS, KEVIN SIMMS, MARTYN JEREMY SIMMS, ANITA JOYCE SIMMS, ERIN MCNAMARA, ROYAL BANK OF CANADA and OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE
BEFORE: C.T Hackland J.
COUNSEL: Miriam Vale Peters, for the Estate Trustees (Moving Parties)
Cheryl Letourneau, for Martyn Jeremy Simms (Cross-Applicant)
HEARD: October 20, 2017
ENDORSEMENT
[1] The Estate trustees seek an order appointing Erin McNamara, solicitor, as Special Trustee, of a trust set up under the will of the late William Malcolm Simms (“the testator”), who died on January 16, 2017. One of the testator’s six children Martyn Simms brings a cross-motion asking that he be appointed Special Trustee.
[2] The testator, in clause 3(c)(ii) of his will, established a $200,000 trust fund for the benefit of his grandson Kevin Simms (“Kevin”). Kevin is 24 years of age and he lives with his father Martyn Simms.
[3] The trust fund is a so-called “Henson Trust” designed to benefit Kevin but also to protect his O.D.S.P. entitlement. Kevin has a severe form of autism and is incapable with respect to making personal (including medical and financial) decisions for himself. His father Martyn is Kevin’s trustee for his personal care and property.
[4] Paragraph 21 of the testator’s will appoints the Royal Bank of Canada (“RBC”) as Special Trustee for this trust fund. Unfortunately on March 2, 2017 RBC declined the appointment as Special Trustee as they do not manage trust funds of the modest dollar amount in question. The evidence indicates that various other institutional trustees were contacted and have similar policies.
[5] In the circumstances Kevin’s father Martyn Simms suggests to the court that he should be appointed Special Trustee because that would be in Kevin’s best interests and he (Martyn Simms) would be willing to retain an advisor to invest the funds and help him make decisions.
[6] The Estate trustees, who are Martyn’s brother and sister, ask the court to appoint Erin McNamara, an estate solicitor and former senior will and estate planner at Scotia Trust to be Special Trustee. She has agreed to do so if the court appoints her. Her rates are very similar to the fees charged by a bank or trust company managing a similar trust.
[7] The Estate trustees have concerns about Martyn’s suitability for the role of Special Trustee based on a somewhat turbulent family history in which the Children’s Aid Society was involved in the distant past. I would simply observe that the evidence before the court satisfies me that Martyn is an excellent father and caregiver for Kevin and I have paid no attention to problems that have long since ceased to be of any relevance.
[8] The Estate trustees submit, and I agree, that I must attempt to ascertain the testator’s intention and to vary the trust in terms of appointing a new Special Trustee, consistent with the testator’s intention, as expressed in the will.
[9] It is obviously the case that the testator could have appointed Kevin’s father as Special Trustee and chose not to do so, in favour of having an institutional trustee. This was not an oversight and must have been a deliberate considered choice. I would note as well:
• the trust provides that if the trust funds accumulate in any year to the point that “it becomes unlawful” to add the funds to the capital of the trust, the funds will be paid to Martyn Simms. The Estate trustees submit that if Martyn was Special Trustee he would be in a conflict of interest situation in view of this provision. I accept this point as correct.
• the trust requires the Special Trustee to consult with Kevin’s father Martyn with respect to Kevin’s care and welfare. This suggests an arm’s length relationship between Martyn and the Special Trustee.
• the Special Trustee is required to make elections as may be permitted by the Income Tax Act, R.S.O. 1990, c. I.2 to minimize tax, suggesting the testator wanted the Special Trustee to have this expertise.
• Martyn is a residuary beneficiary of the estate and the trust lapses to the residue of the estate upon Kevin’s death and this could be seen as a conflict if any of the testator’s children become Special Trustees.
[10] In all the circumstances I am persuaded that the testator intended the Special Trustee to be separate from Kevin’s father Martyn Simms and to be someone with the kind of expertise of a trust officer in a bank or trust company. I therefore accept the Estate trustees’ proposal that Erin McNamara be appointed Special Trustee of Kevin’s trust fund under the will, in place of RBC.
[11] In terms of costs of this motion, I view this court proceeding as a proper estate administration expense which flows from a problem created by the testator when he failed to appoint an alternate Special Trustee. I do not see the fairness of awarding costs against Martyn Simms who, I gather, devotes most of his time and energy to promoting Kevin’s well-being and he acted in good faith in seeking to be appointed Special Trustee to advance Kevin’s interests. There will be no award of costs on this motion.
The Honourable Mr. Justice Charles T. Hackland
Date: November 3, 2017
CITATION: Simms v. Simms, 2017 ONSC 6624
COURT FILE NO.: 17-72333 ES
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MICHAEL JAMES SIMMS and BEVERLY JOAN HESS IN THEIR CAPACITY AS ESTATE TRUSTEES OF THE ESTATE OF WILLIAM MALCOLM SIMMS and WILLIAM RAYMOND SIMMS, GORDON JOHN SIMMS, PATRICIA ANNE SIMMS, KEVIN SIMMS, MARTYN JEREMY SIMMS, ANITA JOYCE SIMMS, ERIN MCNAMARA, ROYAL BANK OF CANADA and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE
BEFORE: C.T Hackland J.
COUNSEL: Miriam Vale Peters, for the Estate Trustees (Moving Parties)
Cheryl Letourneau, for Martyn Jeremy Simms (Cross-Applicant)
ENDORSEMENT
C.T Hackland J.
Released: November 3, 2017