Court File and Parties

COURT FILE NO.: ES-94-18 DATE: 2018/10/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thelma Beaubien, Applicant in her capacity as Estate Trustee of the Estate of Doreen Honour Stuart AND: Cameron Douglas Stuart, Duncan Robertson Stuart, and Andrew James Stuart, Respondents/Beneficiaries

BEFORE: Justice D.A. Broad

COUNSEL: Dawn Phillips-Brown, for the Applicant/Estate Trustee Andrew James Stuart, for the Respondents/Beneficiaries

HEARD: September 13, 2018

Endorsement

[1] Andrew Hargrave Stuart (the “testator”) died on December 30, 2002 and was survived by Doreen Honour Stuart (“Doreen”), his wife from a second marriage and three sons, Cameron Douglas Stuart (“Cameron”), Duncan Robertson Stuart (“Duncan”), and Andrew James Stuart (“James”), from his first marriage.

[2] The testator and Doreen had been married for over 27 years.

[3] The testator left a Will naming Doreen as Estate Trustee and James as the succeeding Estate Trustee in the event Doreen was unable or unwilling to act. James is a lawyer licensed to practice in the Province of Ontario and represents himself, Cameron and Duncan in this proceeding.

[4] A Certificate of Appointment of Estate Trustee with a Will in respect of the estate of the testator (the “Estate”) was issued to Doreen on February 12, 2003 and she acted as Estate Trustee of the Estate until her death on December 21, 2016. The Applicant Thelma Beaubien (the “applicant”) is the daughter of Doreen and is the Estate Trustee of her estate.

[5] The applicant brought an Application to Pass Accounts of the Estate of the testator for the period December 30, 2002 to December 21, 2016 on January 23, 2018.

[6] Cameron, Duncan and James (collectively the “beneficiaries”) served and filed a Notice of Objection to Accounts dated April 5, 2018. The applicant served and filed a Reply to Notice of Objection to Accounts dated April 30, 2018 and the beneficiaries served and filed a Response to Reply to Notice of Objections to Accounts dated May 24, 2018.

[7] The beneficiaries have not withdrawn any of the objections set forth in their Notice of Objection to Accounts.

[8] The applicant filed an Application Record containing a draft order for directions pursuant to rule 74.18(11.7). The beneficiaries did not agree on all of the terms of the draft order for directions and filed an alternative draft order pursuant to rule 74.18(11.9(b)).

[9] The parties agreed that the Application to Pass Accounts proceed to trial and a hearing was held on September 13, 2018 respecting the directions to be given by the court for the trial and for mediation pursuant to rule 74.18(13.1) and (13.2).

[10] Sub-rules 74.18 (13.1) and (13.2) of the Rules of Civil Procedure provide as follows:

(13.1) On the hearing of the application, the court may order that the application or any issue proceed to trial and give such directions as are just, including directions,

(a) respecting the issues to be tried and each party’s position on each issue;

(b) respecting the timing and scope of any applicable disclosure;

(c) respecting the witnesses each party intends to call, the issues to be addressed by each witness and the length of each witness’ testimony; and

(d) respecting the procedure to be followed at the trial, including methods of adducing evidence. O. Reg. 193/15, s. 12 (17).

(13.2) In making an order under subrule (13.1), the court may, in addition to giving any direction under that subrule,

(a) give any direction that may be given under subrule 75.1.05 (4), in the case of a proceeding that is subject to Rule 75.1 (mandatory mediation); or

(b) in the case of a proceeding that is not subject to Rule 75.1, order that a mediation session be conducted in accordance with Rule 75.2, and, for the purpose, give any direction that may be given under subrule 75.1.05 (4). O. Reg. 193/15, s. 12 (17).

[11] At the conclusion of the hearing I directed both counsel to submit a Revised Draft Order for Directions and they have each done so.

[12] As disclosed in their respective Revised Draft Orders for Directions, the parties:

(a) disagree on identification of the parties to the application;

(b) disagree on the characterization and wording of the issues to be tried in each party’s position on each issue;

(c) agree that there shall be documentary disclosure on each side, but disagree on the manner by which such documentary disclosure should be made;

(d) agree that there should be mediation of the issues but disagree on when mediation should occur, namely before or after disposition of an Application or Motion to interpret certain paragraphs of the Will;

(e) disagree on responsibility for paying the fees of the mediator;

(f) agree that it would be beneficial to obtain an interpretation by the court of certain paragraphs of the Will (the applicant says 3(h) and (j) while the respondents say 3(c) and 3(j)), but disagree on whether the interpretation of these provisions of the Will should be obtained prior to mediation, whether such interpretation should be obtained on a separate Application pursuant to sub-rule 14.05(3)(d) of the Rules of Civil Procedure or by means of a Motion in this proceeding, whether the direction to obtain an interpretation should be mandatory or permissive, and which party or parties should be responsible for commencing the Application or Motion;

(g) disagree on whether there shall be examinations for discovery;

(h) disagree on the manner by which evidence shall be led on the trial;

(i) disagree on whether the applicant should be obliged to produce the personal income tax returns of Doreen for the years 2002 to 2016;

(j) disagree on the amount to be retained by James, as the succeeding estate trustee of the Estate, pending the final determination of the issues in the application; and

(k) disagree on the amount to be retained by the applicant, as estate trustee of Doreen’s estate pending the final determination of the issues in the application.

Discussion

(a) Identification of the Parties

[13] The parties are determined to be Thelma Beaubien, in her capacity as Estate Trustee of the Estate of Doreen Honour Stuart, and the respondents/beneficiaries Cameron Douglas Stuart, Duncan Robertson Stuart, and Andrew James Stuart. It is not appropriate that Thelma Beaubien be a party in her personal capacity.

(b) The Issues to Be Tried

[14] In my view the characterization and description of the issues to be tried are better captured in the list of issues set forth in the applicant’s Revised Draft Order Giving Directions than in that of the respondent beneficiaries. The descriptions of the issues in the applicant’s Draft Order of the Objections of the Beneficiaries is broad enough to encompass the objections of the beneficiaries, and are expressed in a manner that is readily understood and will contribute to an orderly and efficient trial.

[15] It is not necessary to make specific reference to subsections 49(2) and (3) of the Estates Act, R.S.O. 1990, c. E.21 as those sections confer statutory powers on the Court on passing of accounts which would have application in any event if found by the court to be appropriate in this proceeding.

(c) Documentary Disclosure

[16] The applicant’s Revised Draft Order Giving Directions provides for the respondents to serve an affidavit of documents containing all documents in their possession or control which are relevant to the issues, and for the applicant to produce for inspection at the office of counsel for the applicants all vouchers, statements or other records relied on in preparing the items listed in the Notice of Objections in Response to Reply to Notice of Objections, and all income tax returns, assessments or notices of assessment of the estate in the possession or control of the applicant. Counsel shall make copies of documents requested by the respondents at a cost to be borne initially by the Estate. The Draft Order provides for the respondents to produce copies of all documents requested by the applicant from the list of documents in the respondents’ Affidavit of Documents, with copying costs to be paid initially by the Estate.

[17] The respondents’ Revised Draft Order Giving Directions provides for the applicant to serve a Production Brief containing copies of all vouchers, receipts, statements and other records relied on in preparing the accounts with respect to those items listed in the Notice of Objections and Response to Reply to Notice of Objections, which shall be numbered according to the corresponding entries in the Estate accounts insofar as practicable, the T1 terminal income tax notice of assessment for the testator, income tax returns for 2014 and 2015 for the Estate, and notices of assessment and notices of reassessment for 2002, 2007, 2008, 2009, 2014 and 2015, clearance certificate for December 31, 2015, and continuing powers of attorney for property exercised immediately prior to the death of the testator.

[18] The respondents’ Revised Draft Order Giving Directions does not provide for any documentary disclosure by them.

[19] It appears that the applicant has provided significant disclosure to date to the respondents at considerable expense. It would be duplicative to require the applicant to prepare and serve a Production Brief containing the documents referenced in the respondents’ Revised Draft Order Giving Directions. The provisions contained in the applicant’s Revised Draft Order Giving Directions provides for a reasonable compromise position to ensure that the respondents have disclosure of all relevant documents which may not have been produced to date at a reasonable cost.

[20] I do not see the basis for the applicant to produce, in this proceeding, any continuing Powers of Attorney for Property exercised immediately prior to the death of the testator. These documents are not relevant to the application to pass the account of the Estate.

[21] In my view the proposal set forth in the applicant’s Revised Draft Order Giving Directions sets forth a reasonable scheme for documentary disclosure between the parties.

(d) Interpretation of the Will

[22] The dispositive provisions of the testator’s will provided, among other things, for the following:

(a) a monetary bequest of $30,000 to each of Cameron, Duncan and James;

(b) division of the testator’s personal property among the Doreen, Cameron, Duncan and James in accordance with the dated memorandum annexed to the Will, and the balance of the personal property which was not specifically set out in the memorandum to be gifted to Doreen;

(c) any indebtedness to the testator owing by Cameron and David McCallum, or by companies or corporations controlled by them, were to be cancelled and discharged;

(d) para. 3(h) of the Will provided as follows:

“To allow my wife, during her lifetime, the use and enjoyment of whatever interest I may own in any residence we may occupy at the time of my death. My Trustee may, at any time, with the consent of my wife, sell such interest with the proceeds of such sale assist ( sic ) in the purchase of another residence for the use and enjoyment of my wife as aforesaid and so on from time to time, always retaining the proportionate interest in such residence for my estate. If my wife so prefers, my trustee may sell such interest in the residence and hold the net proceeds of sale in trust for my wife as hereinafter set out. If, during any period, the whole or any part of the proceeds of any such sale be not so used, they shall be invested by my Trustee and my wife shall, during such period, be entitled to the net income therefrom. My Trustee in determining the proceeds of sale of any such interest in the residence with the view of providing another interest in the residence for my wife as aforesaid, shall not deduct the amount of any debts secured thereon.

All taxes, insurance, mortgage interest, repairs and any charges or amounts necessary for the general upkeep of such residence shall be paid by my wife so long as she shall continue to have the use and enjoyment of such residence.

On the death of my wife, any interest in such residence then held for the use and enjoyment of my wife as herein provided and/or any fund then held by my Trustee representing the sale of any interest in such residence shall be added to the residue of my estate to be dealt with as part thereof.”

(e) Para.3(j) of the Will provided as follows:

“During the lifetime of my wife, DOREEN HONOUR STUART, my Trustee shall keep invested the residue of my estate and to pay the net income derived therefrom to or for the exclusive benefit of my wife in such annual or more frequent periodic payments as my Trustee, in her absolute discretion considers advisable, to enable my wife to live in the manner and style to which she has become accustomed during our lifetime, provided that my Trustee may at any time or times pay to or for the benefit of my wife any amount or amounts out of the capital of such residue as my Trustee requires to enable my wife to live in the manner and style to which she has become accustomed during our lifetime.”

(f) On Doreen’s death, the residue of the Estate then remaining was to be divided into 10 equal parts and paid as follows:

3 parts to Cameron; 3 parts to Duncan; and 4 parts to James.

[23] The parties disagree with respect to the manner in which paragraphs 3(h) and 3(j) are to be interpreted. The applicant and the respondents each agree that an interpretation of paragraphs 3(h) and 3(j) of the Will should be sought from the Court. The applicant’s revised Draft Order Giving Directions provides for the respondent Andrew James Stewart, as succeeding Estate Trustee for the Estate to commence an application for a determination of rights which depend upon an interpretation of paragraphs 3(h) and 3(j) of the Will under sub-rule 14.05 (3)(d) of the Rules of Civil Procedure within 30 days of this order, that is before completion of documentary disclosure and prior to mediation.

[24] Sub-rule 14.05(3)(d) provides as follows:

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a … will…;

[25] The respondents’ Revised Draft Order Giving Directions provides that either party may, after mediation, bring a motion in this proceeding to interpret subparagraphs 3(b) [not 3(h) as referenced in the applicant’s draft Order] and 3(j) of the Will.

[26] In my view it is more appropriate to direct that an application be brought pursuant to sub- rule 14.05(3)(d) for the interpretation of the disputed provisions of the Will rather than by a motion in the passing of accounts proceeding. Sub- rule 14.05(3)(d) specifically provides for an application for the determination of rights that depend on the interpretation of a Will, whereas rule 74.18 does not expressly do so. Moreover, permitting the interpretation of the disputed provisions of the Will to be carried out by the court in a discrete proceeding would permit any appeals from the finding of the court on the interpretations to be disposed of separately from the passing of accounts proceeding so that a final disposition of the interpretation will be available prior to mediation, discovery and trial on the passing of accounts. To have the interpretation conducted within the passing of accounts proceeding may cause unnecessary complication and confusion.

[27] I also find that it is appropriate that James, as the current Estate Trustee of the Estate, be directed to commence the application for interpretation pursuant to sub-rule 14.05(3)(d). The current Estate Trustee has the appropriate standing to bring the application. I also find that the application should be brought following completion of documentary disclosure, but prior to mediation and examinations for discovery. A final interpretation of the disputed provisions of the Will may have the effect of narrowing the issues for mediation, examinations for discovery and trial. Given that the Applicant’s Revised Draft Order Giving Directions provides for an application to interpret paragraphs 3(h) and (j) of the Will while the respondents’ Draft Order refers to paragraphs 3(b) and 3(j), the Order Giving Directions should provide for a an application in reference to paragraphs 3(b), 3(h) and 3(j) unless otherwise agreed between the parties.

(e) Mediation

[28] The applicant’s Revised Draft Order Giving Directions provides that the fees of the mediator shall be paid from the Estate, whereas respondents’ Draft Order Giving Directions provides that the fees of the mediator shall be paid by the Doreen’s estate and the Estate equally. In my view it is appropriate that the fees of the mediator be paid by the two estates equally, in the first instance, subject to final determination and adjustment by the judge disposing of the proceeding.

[29] The Order Giving Directions should provide that in the event that the parties are unable to agree on a mediator, either party may bring a motion for appointment of a mediator by the court.

(f) Examinations for Discovery

[30] The applicant’s Revised Draft Order Giving Directions provides that the applicant and each of the respondents shall attend and submit to examinations for discovery and that the costs of the examinations, including costs of the transcripts, shall be payable out of the capital of the Estate, pending the determination of the costs of the parties by the trial judge.

[31] The respondents’ Revised Draft Order Giving Directions does not provide for examinations for discovery of any party.

[32] In my view examinations for discovery of all parties should be permitted as they have the potential for narrowing the issues, obtaining admissions of fact which would serve to shorten the trial, and to promote settlement of some or all of the issues.

[33] In my view entitlement to the costs of examinations for discovery should be left for the trial judge to determine at the conclusion of the trial.

(g) Manner by which Evidence Shall be Led at Trial

[34] The applicant’s Revised Draft Order Giving Directions provides that the trial shall be heard by way of filing the transcripts from many examinations, and by the filing of affidavit materials, with viva voce cross-examination on the affidavits, and subject to section 13 of the Evidence Act which provides as follows:

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence

[35] The respondents’ Revised Draft Order Giving Directions provides that the trial shall be by viva voce evidence unless otherwise agreed by the parties.

[36] In my view the trial of the issues should be, as far as possible, summary in nature. The evidence of each party in chief shall be by affidavit, together with any excerpts of an opposing party’s examination for discovery transcript intended to form part of the party’s case. Each party may cross-examine viva voce an opposing party who has provided an affidavit. Each party may also enter into evidence excerpts of the transcript of that party’s examination for discovery to seek to rebut those excerpts of such transcript introduced by the opposing party as part of the opposing party’s own case.

[37] A party who intends to cross-examine the deponent of an affidavit at the trial shall, at least 10 days before the date fixed for trial, give notice of that intention to the party who filed the affidavit, who shall arrange for the deponent’s attendance at the trial.

[38] It is not necessary to include a reference to section 13 of the Evidence Act as it is a statutory provision standing apart from the Order Giving Directions. The application of section 13 of the Evidence Act may be the subject of submissions at trial.

[39] In my view the applicant should be directed to serve and file, at least 10 days prior to the date set for trial, a Trial Record consisting of the following:

(a) Notice of Application to Pass Accounts;

(b) Affidavit Verifying Estate Accounts;

(c) the Estate Trustee’s Accounts for the Period December 30, 2002 to December 21, 2016;

(d) Notice of Objection to Accounts;

(e) any Amended Notice of Objection to Accounts which strikes out objections withdrawn, if any;

(f) Reply to the Notice of Objections;

(g) Response to the Reply to the Notice of Objections;

(h) any Amended Response to the Reply to the Notice of Objections which strikes out objections withdrawn, if any; and

(i) Order(s) Giving Directions.

[40] Each side shall be directed to serve and file, at least 10 days prior to the date set for trial, a Compendium, consisting of the following:

(a) copies of relevant excerpts from documents intended to be entered into evidence as exhibits at the trial; and

(b) excerpts of the transcript of examinations for discovery of an opposing party intended to be entered into evidence as part of the party’s own case.

[41] Each side shall be directed to serve and file, at least 10 days prior to the date set for trial, a Memorandum of Law and Book of Authorities for use at the trial.

(h) Production of Doreen’s Personal Income Tax Returns

[42] The respondents’ Revised Draft Order Giving Directions would require the applicant to produce Doreen’s personal income tax returns for the years 2002 to 2016. They argue that, on the basis of the interpretation that they say should be placed on paragraph 3(j) of the Will, Doreen’s income is relevant to the determination of the amount which she was entitled to draw from the net income and capital of the residue of the Estate.

[43] In my view it is premature to require the applicant to produce these tax returns until a final interpretation of paragraph 3(j) of the Will has been made by the court. A provision allowing the parties to move for further directions as may appear advisable or necessary is sufficient to permit the respondents to move for further production following final determination of the interpretation of the disputed provisions of the Will.

(i) Amounts to be Retained by the Estate and by Doreen’s Estate pending the Final Determination of the Issues in the Application

[44] The applicant’s Revised Draft Order Giving Directions provides for James, as the succeeding Estate Trustee, to hold in reserve remaining in the Estate the sum of $500,000 and for the applicant to pay from Doreen’s estate into trust with Madorin Snyder LLP the sum of $200,000, pending the final determination of the issues in the application, or the consent of the applicants and the respondents.

[45] The respondents’ Revised Draft Order Giving Directions provides for the Estate Trustee of the Estate to retain a minimum of $200,000 and for the applicant, as estate trustee of Doreen’s estate to retain a minimum of $400,000 pending the final determination or settlement of the issues in the application.

[46] The parties agree that the amount to be retained in the two estates is a difficult issue and is ultimately within the discretion of the court. Counsel for the applicant pointed out that the amount withdrawn by Doreen from the Estate in income and capital was not lavish, averaging approximately $29,000 per year, of which approximately $9000 was represented by average annual capital encroachments.

[47] Under the circumstances, I find that it is appropriate to order that each estate retain the sum of $200,000 pending the final determination of the issues or settlement of the proceeding.

(j) Costs and Further Directions

[48] I find that it is appropriate for the Order Giving Directions to provide that the costs of the proceeding be reserved to the trial judge and that the parties shall be entitled to move for further directions as may appear advisable or necessary.

Disposition on Motion for Directions

[49] In accordance with the foregoing, it is ordered as follows:

1. The parties to this application are the Applicant Thelma Beaubien, in her capacity as Estate Trustee of the Estate of Doreen Honour Stuart and the named Respondents Cameron Douglas Stuart, Duncan Robertson Stuart, and Andrew James Stuart.

2. The issues to be tried are as follows:

   (a) the Respondents allege, and the Applicant denies, that the claim for compensation made by the Applicant, in her capacity as Estate Trustee of the Estate of Doreen Honour Stuart is excessive. If the claim for compensation is excessive, what is the quantum of compensation to be paid to the Estate of Doreen Honour Stuart for the services performed by Doreen Honour Stuart ("Doreen") as Estate Trustee of the Estate of Andrew Hargrave Stuart ("the Estate") for the period from December 30, 2002 to December 21, 2016?

   (b) the Respondents allege, and the Applicant denies, that Doreen allowed for excessive amounts to be paid to accountants and lawyers out of the Estate, and that the work done by these professionals was not competently done;

   (c) the Respondents allege, and the Applicant denies, that a portion of the legal and accountant costs should have been borne by Doreen personally, or that a portion of the legal and accountant fees should have been allocated to the revenue of the Estate;

   (d) the Respondents allege, and the Applicant denies, that Doreen did not properly administer the Estate in accordance with the terms of the Last Will and Testament of the deceased, and failed to properly invest the Estate, resulting in the capital beneficiaries suffering a loss;

   (e) the Respondents allege, and the Applicant denies, that Doreen was in a conflict position and treated the beneficiaries in an uneven-handed manner;

   (f) the Respondents allege, and the Applicant denies, the payments received by Doreen as income beneficiary and as capital encroachments were excessive, and such payments to Doreen should not be subject to compensation;

   (g) the Applicant alleges, and the Respondents deny, that Doreen held a life interest in the life lease property, municipally known as 139 Father David Bauer Drive, T.H. #11, Waterloo, ON, in which the Estate held a 50% interest at the date of death;

   (h) the Respondents allege, and the Applicant denies, that the costs of the preparation of the Estate Accounts is excessive and should be deducted from the claim for compensation;

   (i) the Respondents allege, and the Applicant denies, that there were assets held in the name of the deceased were not included in the Estate;

   (j) The Applicant alleges, and the Respondents deny, that all assets held by the deceased as at the date of death have been properly disclosed, administered and accounted for by Doreen; and

   (k) the Respondents allege, and the Applicant denies, that Doreen is personally liable to the Estate for any tax liability for any capital gains.

3. The Respondents shall serve Affidavits of Documents on or before January 15, 2019 containing all documents in their possession or control relevant to the issues set out at paragraph 2 herein.

4. The Applicant shall produce for inspection by the Respondents:

   (a) all vouchers, statements or other records relied on in preparing the items listed in the Notice of Objections and Response to Reply to Notice of Objections; and

   (b) all income tax returns, assessments or notices of reassessment of the Estate in the possession or control of the Applicant;

   by making such documents available at the office of Madorin Snyder LLP on a date before January 15, 2019, to be arranged between the parties and Madorin Snyder LLP shall make copies of documents requested by the Respondents at a cost to be borne initially by the Estate of $0.25 per page.

5. The Respondents shall produce copies of all documents requested by the Applicant from the list of documents in the Respondents' Affidavit of Documents within 30 days of service of the Affidavit of Documents, with the copying costs to be paid initially by the Estate.

6. The Applicant shall further provide a Document Brief containing any documents in addition to the documents at paragraph 4 (a) and (b) to be relied upon in the trial of this action by January 15, 2019.

7. Unless otherwise agreed in writing by the parties, the Respondent James Andrew Stuart, as succeeding Estate Trustee for the Estate of Andrew Hargrave Stuart, shall, by February 15, 2019, commence an Application under sub-rule 14.05 (3)(d) of the Rules of Civil Procedure for a determination of rights that depend on the interpretation of paragraphs 3 (b), 3(h) and 3(j) of the Will of Andrew Hargrave Stuart, which may reduce or limit the issues to be tried as set out in paragraph 1 herein.

8. The Applicant and the Respondents shall attend at a mediation in the Region of Waterloo, with a mediator to be agreed upon between the parties, on the issues set out herein, or such remaining issues as may be agreed upon by the parties in writing, and on a date to be agreed upon, but not later than 45 days after final determination of the Application referred to in paragraph 7, with the fees of the mediator to be paid in the first instance equally by the applicant, on the one hand, and the respondents, on the other hand, subject to final determination and allocation by the trial judge.

9. In the event that the parties shall be unable to agree upon a mediator, the Court may appoint a mediator on motion by any party.

10. The Applicant and each of the Respondents shall attend and submit to examinations for discovery in accordance with the Rules of Civil Procedure but within sixty (60) days after completion of the mediation provided for in paragraph 8, and the costs of the examinations, including costs of the transcripts, shall be paid by the examining party in the first instance, subject to final determination and allocation by the trial judge.

11. Any interlocutory motions with respect to undertakings and refusals from the examinations for discovery shall be brought no later than 60 days following the examinations.

12. The trial of the issues as set out herein shall be set down by either the Applicant or the Respondents by filing a Notice of Readiness for Pre-Trial Conference by the later of (a) 65 days following completion of the examinations for discovery or (b) 10 days following final disposition of any motions with respect to undertakings and refusals, with a pre-trial date to be chosen and agreed to by the parties within 10 days thereafter.

13. The trial of this matter shall be heard as follows:

    (a) the evidence of chief of the applicant and the respondents respectively shall be led by the filing of affidavit material, together with any excerpts of an opposing party’s examination for discovery transcript intended to form part of the party’s case;

    (b) cross-examination on the affidavits filed by each party shall be conducted viva voce;

    (c) each party may also enter into evidence excerpts of the transcript of that party’s examination for discovery to seek to rebut those excerpts of such transcript introduced by the opposing party as part of the opposing party’s own case; and

    (d) a party who intends to cross-examine the deponent of an affidavit at the trial shall, at least 10 days before the date fixed for trial, give notice of that intention to the party who filed the affidavit, who shall arrange for the deponent’s attendance at the trial; and

    (e) in accordance with any further directions made by the pre-trial judge or the trial judge.

14. The Applicant shall serve and file, at least 10 days before the trial of this matter, a Trial Record, to include:

    (a) Notice of Application to Pass Accounts;

    (b) Affidavit Verifying Estate Accounts;

    (c) the Estate Trustee’s Accounts for the Period December 30, 2002 to December 21, 2016;

    (d) Notice of Objection to Accounts;

    (e) any Amended Notice of Objection to Accounts which strikes out objections withdrawn, if any;

    (f) Reply to the Notice of Objections;

    (g) Response to the Reply to the Notice of Objections;

    (h) any Amended Response to the Reply to the Notice of Objections which strikes out objections withdrawn, if any; and

    (i) Order(s) Giving Directions.

15. The applicant and the respondents shall each serve and file, at least 10 days prior to the date set for trial, a Compendium, consisting of the following:

    (a) copies of relevant excerpts from documents intended to be entered into evidence as exhibits at the trial; and

    (b) excerpts of the transcript of examinations for discovery of an opposing party intended to be entered into evidence as part of the party’s own case.

16. The applicant and the respondents shall serve and file, at least 10 days prior to the date set for trial, a Memorandum of Law and Book of Authorities for use at the trial.

17. The succeeding Estate Trustee, Andrew James Stuart, shall hold a reserve remaining in the Estate of $200,000.00 to be held pending the final determination of the issues in this Application, or the consent of the Applicant and the Respondents, and shall otherwise be free to distribute the assets of the Estate.

18. The Applicant shall pay from the Estate of Doreen Honour Stuart into trust with Madorin Snyder LLP the sum of $200,000.00 to be held pending the final determination of the issues in this Application, or the consent of the Applicants and the Respondents, and shall otherwise be free to distribute the assets of Estate of Doreen Honour Stuart.

19. The costs of this Application, including this motion for directions, including all legal fees, disbursements, accountants fees, experts fees and other incidental expenses incurred by the applicant and the respondents, shall be reserved to the trial judge.

20. The parties shall be entitled to move for further directions as may appear advisable or necessary.

D.A. Broad Date: October 29, 2018