CITATION: Ciprick v. Craig, 2017 ONSC 7555
COURT FILE NO.: CV-17-25401
DATE: 20171215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maribel Ciprick
Applicant
– and –
Rebecca Janet Craig
Respondent
Kathleen M. Montello, for the Applicant
Josephine Stark, for the Respondent
HEARD: December 12, 2017
Carey J.:
[1] It is a sad fact that second marriages often divide families.
[2] When James Craig (“James”) died, on July 7, 2017, he left a widow and two children, one, a daughter, Rebecca Craig Braun, now living in Michigan. His will, made in 2005, in anticipation of his second marriage named his brother, David Craig (“David”), as estate trustee (executor) and his daughter as the alternate.
[3] It also left his entire estate to his second wife, Maribel Ciprick, and nothing to his children. According to his widow’s affidavit, James was estranged from both his children from the time of the writing of the will.
[4] Neither of them attended his wedding in 2005. Rebecca did not invite her father to her law school graduation or her own wedding. The affidavit states that Rebecca and Maribel had never met before James’ death, despite her being in James’ life for 20 years. Rebecca did not speak at all to Maribel at James’ funeral. David was so upset at the will leaving nothing to the children that he decided to renounce his appointment as executor of James’ will.
[5] Rather than follow suit and renounce in favour of the sole beneficiary, Rebecca, the alternate, chose to contact the McTague Law Firm LLP (“McTague”) to discuss her father’s estate. Five days after the short call and six days before the first meeting, she forwarded to McTague, an e-mail sent on behalf of Maribel from the Montello Law Professional Corporation (“Montello Law”). Maribel says the contact was because of bills that needed to be paid and a complete lack of funds to pay them. Her husband, a pharmacist, ran a Shoppers Drug Mart (“SDM”) in Essex. She had been contacted by SDM in regards to insurance and pension, but a planned appointment with them was cancelled after the SDM representative talked to David.
[6] McTague’s response to the contact from Maribel was to write the same day to Montello Law. In that letter, Ms. Stark, counsel for the respondent, advised that Rebecca would proceed as the executor of the estate and that “I am scheduled to meet with Ms. Braun next week and will proceed with the administration of the Estate.”
[7] On July 27, 2017, an objection was filed to Rebecca being issued a certificate of appointment. Maribel’s affidavit, setting out the alienation that occurred between the Craig children and their father, was attached and forms part of the Motion Record here.
[8] McTague says Ms. Braun refuses to pay the bill and that the charging order should issue as work reasonably done on behalf of the estate. I disagree. Before even meeting with Ms. Braun the firm was shutting down communication with the sole beneficiary and announcing their client’s intention to administer the estate.
[9] On the day of that first meeting, they received Maribel’s Notice of Objection and attached affidavit setting out the complete breakdown of any relationship between her husband and his children from the time of the making of his will.
[10] The objection was resisted by Rebecca who said she wanted to administer the estate in order to “honour her father’s wishes.” I agree with the findings of Howard J. in his ruling of September 26, 2017, passing over Rebecca in favour of Maribel as estate trustee. In that ruling, a page 11, he concluded:
In my view, it is clear that the Respondent (Rebecca Craig) harbours a strong animosity towards the Applicant. It shocks the conscience that the daughter of a deceased would offer no expression of sympathy for the loss suffered by the wife of the deceased and, indeed, would say nothing at all to the person her father chose to spend his life with. In my view, that animosity rises above mere friction and satisfies me that due administration of the estate would be compromised were the Respondent not passed over.”
[11] There is nothing in the record that reveals any legitimate motive for Rebecca to oppose the application of the sole beneficiary to administer the estate. She had never met her father’s wife, nor spoken to her father in a dozen years and lives in the United States. Justice Howard notes in his ruling that at the time the estate was valued at over $1 million which would entitle the estate trustee to charge the estate approximately $70,000 in executor’s compensation. The estate is currently estimated at about one-third of that amount with considerable debts, according to the respondent’s counsel. As Howard J. observed “[t]here is nothing in the Respondent’s affidavit that indicates or suggests that she is prepared to forgo her right to claim executor’s compensation by reason of her alleged strong feelings of duty towards her estranged father or otherwise.”
[12] The named alternate executor should not have taken any steps towards the administration of her estranged father’s estate in the face of the opposition of its sole beneficiary. Instead, she instructed McTague to oppose the application and go about filing letters of probate.
[13] Virtually everything done by her and her lawyers had to be redone according to the respondent’s counsel, when Maribel was appointed executor. She now asserts to her former counsel that the estate in which she has no interest should pay the legal fees run up before she was passed over.
[14] As had often been stated it is no longer the case that the cost of estate litigation is usually to be paid by the estate. The usual rule in costs apply, with the winner receiving and the loser paying costs. That is what occurred in the motion decided by Howard J.
[15] The same principle should be applied here to the steps taken in the face of litigation to challenge the right of the proposed executor to administer the estate. There was no good reason for any steps to be taken when the sole beneficiary was in opposition to the appointment. The only conclusion that is reasonable is that the steps taken and the refusal to pay the legal bill for those steps is a further example of the unexplained animosity of Rebecca to her father’s widow.
[16] McTague should be seeking payment of the bill from Ms. Craig. She is a lawyer. These costs were not reasonably incurred and the estate should not be responsible for them.
[17] I do not, in the circumstances, require costs submissions. Charging motion dismissed with costs to respondent fixed at $2,500, payable forthwith.
Thomas J. Carey
Justice
Released: December 15, 2017
CITATION: Ciprick v. Craig, 2017 ONSC 7555
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maribel Ciprick
Applicant
– and –
Rebecca Janet Craig
Respondent
REASONS ON MOTION
Carey J.
Released: December 15, 2017