Court File and Parties

COURT FILE NO.: CV-19-0184-000 DATE: 2020-06-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANNE WINKWORTH Applicant

N. Wainwright, for the Applicant

• and -

ROBERT MURRAY, JAMES MURRAY and the ESTATE OF EVELYN ROSE MURRAY Respondents

M. Holervich, for the Respondent James Murray Robert Murray in person

HEARD: June 18, 2020, at Thunder Bay, Ontario Mr. Justice F.B. Fitzpatrick

Decision On Motion

[1] Anne Winkworth, (“Anne”) a co-estate trustee for the estate of her mother Evelyn Rose Murray brings this motion for directions. The respondent Robert Murray is a co-estate trustee. He is Anne’s brother. The respondent James Murray, a sibling of the estate trustees is a beneficiary of the estate together with Anne and Robert. There are no other beneficiaries.

[2] Anne seeks directions regarding the sale of the last remaining major asset of the estate, a property located at 269 Ray Court in Thunder Bay (the “Property”). All parties want the Property listed for sale and sold.

[3] Evelyn died on August 27, 2014. Evelyn’s will made certain provisions for the home, including the following:

After the period of two years from the date of my death, or sooner, if any of my said children shall have survived me and if he or she wishes, he or she shall have the right to purchase from my estate my said property at fair market value, less ten (10%) per cent of the fair market value.

[4] The parties began the process of attempting to sell the Property by getting it appraised in June 2017 and trying to have it listed for sale in May 2018. This attempt failed to obtain a sale. Anne then moved for directions from the court. Robert responded by bringing an application for an accounting of Anne’s conduct as estate trustee and for an order removing her as an estate trustee. This initial exchange of proceedings resulted in a consent order from this court.

[5] On May 16, 2019, Smith J. made the following order:

On Consent, Order to issue as follows:

1. Fair market value of the subject property for the purpose of any sale to the children of Evelyn be established at $493,000.00 in accordance with the June 15, 2017 valuation.
2. Any one of the children of Evelyn can make an offer to purchase the property for Fair Market Value, less 10%, within twenty-one (21) days of the Court’s Order, and the Trustees shall respond within 7 days of receipt of any offer and thereafter any child of Evelyn may, if no offer has been accepted, then any of the parties may within 14 days return before the Court for further direction, on any of these applications. (CV-18-0546-00 and the cross application brought by James Murray, the Respondent in CV-19-0184-00) failing which the property shall be listed for sale with Andrew Lawrence of Royal Lepage Realty in Thunder Bay for a price as recommended by Andrew Lawrence or as otherwise directed by the Court.
3. Any offers to purchase the property will be forwarded to Robert and James by Anne.
4. The estate trustees will have the authority to accept or reject any offer which is received.
5. All sale proceeds, less reasonable expenses, will be deposited into the estate bank account, namely account number 03444-54021076 at the Royal Bank of Canada 290 Memorial Avenue branch in Thunder Bay, unless otherwise ordered by the Court.
6. Costs of today reserved to the Justice hearing any of the applications.

[6] After the order was made, the Property was listed for sale. A further dispute arose because Robert and James wanted to purchase the Property. Anne did not agree on how much they would have to pay to exercise their right to do so under the will. The matter was again placed before this court for directions. On June 20, 2019 Shaw J. rendered a decision. (Winkworth v. Murray et al, 2019 ONSC 3851). Anne’s position on the motion was accepted by Shaw J.. In August 2019, Anne was awarded costs for that motion for directions in part to be paid by Robert and James personally (Winkworth v. Murray et al, 2019 ONSC 5104).

[7] Those costs have now been paid in part.

[8] Since the filing of this motion the parties engaged in productive discussion regarding resolution of this motion. My compliments to the parties in largely resolving this motion. They were able to agree on most provisions regarding a sale. I will incorporate that agreement in the order ultimately issuing under this endorsement.

[9] There were two discrete disputes remaining. First, the parties did not agree as to where the ultimate proceeds of sale were to be held pending resolution of other outstanding issues regarding the administration of the estate. Second, the parties made submissions as to costs of this hearing.

[10] Anne argued the proceeds of sale should be paid to an existing RBC account, number 03444-54021076 referenced in paragraph 5 of the consent order of Smith J. of May 16, 2019. Robert and James argued the proceeds could be paid to that account only if Robert was added as an account holder. Alternatively, they argued the money could be held in trust by Anne’s law firm subject to payment out on written consent of the parties or further court order.

[11] Smith J.’s order regarding the account did provide that the court could “order otherwise”. While the order was on consent, it is now a point of contention about who will control the sale proceeds. I expect this may be subject to a further hearing. In order to encourage the parties to continue to cooperate, I am exercising my discretion to have the sale proceeds held by Anne’s counsel pending further written agreement of the parties or further order of the court.

[12] With respect to costs, Anne asks for an order for costs payable personally by Robert and James fixed in the amount of $3,500.00 inclusive of disbursements and HST. Anne argues nothing gets done on this file without her having to bring motions.

[13] In response, James and Robert argue that as the parties resolved the main issues, any question as to cost should be reserved until the Property is sold. Alternatively, they ask for Anne to pay their costs fixed in the amount of $2,000.00 inclusive of disbursements and HST.

[14] I agree with Anne’s submission that this motion was necessary to move the file forward. However, the parties have cooperated to achieve an order that will hopefully enable the estate to dispose of its remaining significant asset. Accordingly, I order that Anne shall have her costs of this motion fixed in the amount of $2,000.00 inclusive of disbursements and HST. These costs will be a first charge on the sale proceeds to be paid when the Property sells.

[15] For the reasons set out above, and noting the consent of the parties to the majority of the terms it is hereby ordered:

1. A Property located at 269 Ray Court Thunder Bay (the “Property”) shall be listed for sale with Andrew Lawrence of Royal Lepage Realty in Thunder Bay, for such price and for such listing period as may be recommended by Andrew Lawrence, or as may otherwise be directed by the Court.
2. The right of any party to purchase the Property from the Estate arising under the Last Will of Evelyn Rose Murray dated March 19, 2014, is suspended until after the expiry of any listing agreement for the Property entered into by the Estate.
3. If an offer to purchase the Property is received and the acceptance or counter of that offer is recommended by Andrew Lawrence, the offer shall be accepted by the parties subject to the liberty of any party to return this matter to the Court for further directions on three (3) days notice.
4. If the Estate enters into an agreement to sell the Property, then the estate trustees shall retain the firm of Carrel + Partners to act as solicitors for the vendor Estate on the sale of the Property. If any issue arises with respect to the completion of the sale and on which the estate trustees cannot agree, then any party may return this matter to the Court for further directions on three (3) days notice.
5. Following the completion of any sale of the Property, all of the sale proceeds, less the following expenses, comprised of (1) the commission plus taxes payable to Andrew Lawrence, (2) the legal fees and disbursements plus taxes payable to the firm of Carrel + Partners on the sale, and (3) the sum of $2,000.00 as costs of this motion payable to Anne Winkworth shall be held in trust by the solicitors for Anne Winkworth, Cheadles, until otherwise agreed in writing by the executors or as may be directed by the Court
6. In addition to the right to return the matter to the court as noted in paragraphs 3 and 4 above, any party shall remain entitled to return before the Court at any time, the Motion for directions by Anne Winkworth made initially returnable March 19, 2020. If possible the parties will seek to have any additional attendances placed before Fitzpatrick J.
7. This order is effective immediately. It need not be taken out as formal order until the court returns to normal operations.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: June 22, 2020