Estate of Kenneth Coles also known as Ken Coles v. Coles , 2019 ONSC 4825

BARRIE COURT FILE NO.: CV-19-000747-00

DATE: 20190815

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

In the Estate of Kenneth Coles also known as Ken Coles, deceased, and Linda Brown

Applicant

– and –

Kayne Coles, Tosha Coles, Tanya Jaggert and Tryna Jaggert

Respondents

Jack Armstrong, for the Applicant

Self-Represented

Heard: June 4, 2019

REASONS FOR DECISION

DE SA J.:

1The Applicant, Linda Brown, (the “Applicant” or “Ms. Brown”) has brought a motion seeking to be appointed as an Estate Trustee pursuant to the July 10, 2018 Will of Kenneth Coles (the “Will”).

2Alternatively, the Applicant seeks an order appointing her as Estate Trustee during litigation of the Estate of Kenneth Coles for the purpose of:

1. Preserving estate assets.

2. Payment from Estate funds for any legitimate estate expenses including but not limited to outstanding debts, taxes, insurance and other expenses.

3. To hold any Estate proceeds in a secure estate account until such time as the issues herein are determined by the court or resolved as between the parties.

3Ms. Brown also seeks an order directing the funeral home, Peaceful Transitions, to release to her Kenneth Coles’ original death certificate to permit collection of Estate assets which will all be placed in a secure estate account.

4And finally, for directions in relation to the following:

1. A declaration that the Will of Kenneth Coles executed July 10, 2018 is the valid Last Will and Testament of Kenneth Coles.

2. An order that the Estate Trustee can proceed with the administration of the Estate of Kenneth Coles upon appointment.

5Ms. Brown was hired by Kenneth Coles to work in his business as an account manager. In March 2016, they began to spend more time together. According to Ms. Brown, after 2016, she and Kenneth Coles developed romantic feelings for each other, and even began discussing marriage. The Respondents dispute this claim.

6The last Will of Kenneth Coles, signed on July 10, 2018, leaves virtually his entire Estate to Ms. Brown.

7Kenneth Coles had four children, Kayne Coles, Tosha Coles, Tanya Jaggert and Tryna Jaggert (collectively, the “Respondents”).

8Kenneth Coles’ Will excludes all of his children from any part of his Estate. In Kenneth Coles’ preceding will, he left everything to his family.

9All four of Kenneth Coles’ children are contesting the validity of the Will, and have asserted that Ms. Brown exerted undue influence over their father, Kenneth Coles. Kenneth Coles was suffering from an aggressive form of brain cancer in the final years of his life which caused cognitive impairments. According to the Respondents, they tried to get in contact with their father Kenneth Coles, but Ms. Brown would not permit them to speak with him.

10This matter came before me on June 4, 2019. Given the circumstances, I declined to appoint Ms. Brown as the Estate Trustee.

11I ordered the parties to arrange for a mutually agreeable Trustee to manage the Estate and its assets pending the outcome of the litigation. A mutually agreeable Trustee was to be selected forthwith. I expect that by the time of the release of these reasons, the parties have selected a Trustee to manage the Estate.

12I also ordered that no assets were to be taken from the Estate apart from what is required to pay any expenses for upkeep/maintenance.

13Kenneth Coles’ ashes are to be returned to Kayne Coles who will receive them on behalf of the Respondents.

14The death certificate of Kenneth Coles is to be provided to the Trustee once appointed to assist with administering the Estate.

15If the parties require any further direction, they can contact the Trial Coordinator’s office in Newmarket and arrange for an appearance before me. The appearance can take place at either Newmarket or Barrie.