Court File and Parties

Court File No.: 427/17 Date: 2019-01-15 Superior Court of Justice – Ontario

Re: Estate of John Lawrence

Between: Victoria Lawrence, Applicant And: Julie Lawrence and Andrew Lawrence, Respondent

Before: Mr Justice Ramsay

Counsel: B. Harasym for Applicant; Respondents in person

Heard: January 14, 2018 at Welland

Endorsement

[1] The Applicant moves for directions under Rule 75.06 with respect to the estate of her late husband. The Respondents are the son and daughter of the deceased by his first wife. They have filed an objection to the Applicant’s request for a certificate of appointment as executor with a will.

[2] The testator was married for many years and had two children, the Respondents, who are now in their forties. When their mother died, he became withdrawn from them. He preferred to spend his time on the internet. He wasted his savings on Nigerian lonely hearts frauds. In 2012 he met the Applicant on line. She is a Philippines national. She was working in Dubai at the time in a day care centre. On January 22, 2013 the deceased went to Dubai and married her. He was 77. She was 50. She arrived in Canada in 2015. The testator transferred ownership of his residence from himself to the two of them in joint tenancy. He executed a will naming her executrix and dividing the residue of his estate among the Applicant and the two children, 40/30/30.

[3] On March 6, 2017 the testator died. The assets of the estate consist of an investment account that, after payment of most of the estate’s debts, is worth about $80,000. The estate owes the TD Bank about $50,000. The Applicant, a permanent resident of Canada, remains in the matrimonial home, of which she is now the sole owner.

Payment of the debt to TD Bank

[4] Today, the Applicant moves first for an order that would allow payment of the debt to the TD Bank. The Respondents resist on the ground that the TD debt is secured against the matrimonial home, which makes it the Applicant’s responsibility.

[5] The TD line of credit predates the marriage. The testator is the principal and sole debtor. TD has sued the estate on the line of credit and will be in a position to requisition default judgment unless the estate goes to the expense of defending. The estate has no defence. The position of the Respondents is that the estate should pay the interest, and keep paying interest to put the line of credit back into good standing and keep it there while they pursue their objections to the will and their action to set aside the testator’s marriage and the transfer of the matrimonial home to joint tenancy.

[6] Whatever the outcome of the Respondents’ objections and action, the estate owes TD the money and if it does not pay, the estate will inevitably owe more money and incur more cost. I order that the TD debt be paid out of the funds in the investment account forthwith.

Certificate of appointment

[7] This issue can be decided summarily on the written record. The credibility of the parties is not the issue. The observations and opinions of the Respondents are on the record in sworn form. They are, however, just observations and opinions. There is no evidence of suspicious circumstances. There is no evidence that casts doubt on the testator’s ability to contract a marriage, make a will or transfer property. The marriage, the transfer and the will are all proven by the usual documentation. The Respondents have offered nothing that would be capable of disproving the validity of any of them.

[8] On the evidence of the Respondents the testator was not particularly close to them. When his first wife died, the testator withdrew and preferred to spend his time indulging his fantasies with overseas fraudsmen and internet pornography. When the children tried to intervene he made it very clear that he wanted to be left alone. He did execute two powers of attorney in favour of his daughter, but as he was never found to be incapable, they did not stop his activities. His son thought he was delusional, but the evidence just as consistent with him simply having weak character and bad judgment, together with a certain degree of self-absorption. The transfer of property and the will were accomplished under the supervision of a lawyer, who found no cause for concern. The marriage was performed by an Anglican chaplain who issued a certificate.

[9] The marriage appears to have been to the mutual advantage of the testator and the Applicant. The Applicant came to Canada and took care of the testator for the rest of his life. All the evidence suggests that he was badly in need of care. He did not even manage basic housework when he was on his own. His minister deposed that after the marriage the testator brightened up and seemed happier.

[10] The widow now seeks the appointment that the testator himself made in his will so that she can take care of the remaining loose ends in the estate, which will in any event leave her with a house and next to nothing else. There is no reason to deny her.

Costs of the abortive motion for a certificate of pending litigation

[11] Earlier in the proceedings the Respondents brought and then abandoned a motion for a certificate of pending litigation on the Applicant’s residence. As a result the estate incurred costs estimated at about $6,000. The motion should not have been brought. It would not have succeeded. The Applicant should not have been put to the expense of defending a motion on which the moving parties were not serious. The $6,000 includes counsel fee of $1,000 for today. Since counsel had to be here today anyway, I calculate the costs at $5,000 and award 90% of that amount, substantial indemnity, to the Applicant and order the Respondents to pay her $4,500 forthwith.

Costs of interest accrued due to the Respondents’ conduct

[12] The Respondents unreasonably withheld consent to the payment out of the investment fund of several debts of the estate, including income tax, funeral expenses and the TD debt. This was not the fault of the testator or the way he framed his will. The estate should not have to bear this cost. It was obvious from the start that the estate had to pay its debts. The only motive I can see for the Respondents’ conduct is not a justifiable one. I order the Respondents to pay the estate $2996.35 on account of increased funeral expenses and $6,216.75 on account of increased tax expenses. The increased TD expenses are not quite finalized. There is daily interest and there will be contractual penalties, probably in the neighbourhood of $2,000. I shall deal with this in my order.

Consolidation of the Rule 75 proceedings with the action and further adjournment

[13] The Respondents ask that any motions for direction under Rule 75 await the outcome of their action. A motion is pending to consolidate the action with the present proceedings. It would not be just and efficient to adjourn today’s motion for the following reasons:

a. The estate is small and has been substantially wasted already by unnecessary litigation. b. The action has no apparent merit.

Conclusion

[14] Mr Harasym may take out an order in the following terms without the approval of the Respondents:

a. A certificate of appointment as estate trustee with a will shall issue to the Applicant. b. The Respondents shall pay $5,000 costs to the Applicant forthwith for the abandoned motion for a certificate of pending litigation. c. The Respondents shall pay $9213.10 to the estate forthwith on account of increased borrowing costs incurred by the estate because of their unreasonable conduct. d. Investors Group, Suite 207, 155 Main Street East, Grimsby, Ontario shall pay out the remaining funds held by them in the accounts of John Lawrence to Daniel & Partners LLP in trust. e. Daniel & Partners LLP shall pay out of the amount received from Investors Group the debt owed by the estate of John Lawrence to TD Bank and any other debts of the estate. f. The residue of the estate shall be distributed according to the terms of the will after payment of the debts. g. The Applicant is entitled to her legal expenses from the estate, less any amounts actually received from the Respondents on that account. h. Amounts paid to TD Bank on account of the delay between the death of the testator and today’s order shall be deducted from the Respondents’ shares of the estate. i. The Respondents are jointly and severally liable for any amounts they are ordered to pay under sub-paragraphs b. and c of this order, with right of recovery of 50% as between themselves. j. The parties may make written submissions to the costs of today’s motions not exceeding three pages in length, to which may be appended a bill of costs and any offer to settle, the Applicant by January 21 next, the Respondents by January 28.

J.A. Ramsay J. Date: 2019-01-15