Rezaee (Re), 2020 ONSC 7584

IN THE ESTATE OF KAMRAN REZAEE, deceased: RE: Siamak Naftchi, Applicant

COURT FILE NO.: CV-19-33789-ES DATE: 2020-12-07 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE ESTATE OF KAMRAN REZAEE, deceased: RE: Siamak Naftchi, Applicant

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Stefan Juzkiw, Counsel for the Applicant Heather Hogan, Counsel for the Public Guardian and Trustee

HEARD: December 2, 2020

ENDORSEMENT

1This motion is brought by Siamak Naftchi for an order that the holograph will of Kamran Rezaee is proven in solemn form, and an order to allow Mr. Naftchi’s application for a Certificate of Appointment of Estate Trustee with a Will.

2The first question for determination on this motion is whether Kamran Rezaee’s handwritten paper dated March 20, 2018 is a valid holograph will.

3The second issue is whether Mr. Naftchi should be appointed Estate Trustee and the estate administrative bond be dispensed with.

Facts

4The deceased, Kamran Rezaee was born on March 15, 1962 in Iran. He moved to Canada in 1983. Mr. Rezaee was diagnosed with pancreatic cancer in October, 2016, and died on August 10, 2018 at Mackenzie Health Centre, Richmond Hill, Ontario. Mr. Rezaee had no family in Canada.

5Mr. Naftchi was Mr. Rezaee’s close friend. After Mr. Rezaee was diagnosed with cancer, Mr. Naftchi became his primary caregiver, driving him to medical appointments in Toronto, Newmarket and Richmond Hill. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral expenses.

6On March 20, 2018, Mr. Naftchi hosted a dinner at his home to celebrate the Persian New Year. The dinner was attended by Mr. Rezaee and four other friends: Nahid Lebasi, Erfan Nida, Arian Nida and Vahid Amiaslani.

7At some point during the dinner party, Mr. Naftchi testified that Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper. The writing has been translated as follows:

I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.

8This paper was written and signed in front of all of the dinner guests.

9Mr. Naftchi testified that Mr. Rezaee wrote this holograph will knowing that his cancer was terminal, with the intention that Mr. Naftchi would inherit his estate. To Mr. Naftchi’s knowledge, Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased.

10After signing the will, Mr. Rezaee put the will in his pocket and went into Mr. Naftchi’s bedroom to take a nap, which he did every one or two hours due to his health. Mr. Rezaee did not hand the will to Mr. Naftchi, and Mr. Naftchi assumed that Mr. Rezaee kept the only copy.

11In or around November 2018, Mr. Naftchi found the holograph will in one of his winter jackets. He believes that Mr. Rezaee put the will in the jacket pocket when he went to sleep in the bedroom on March 20, 2018.

12After obtaining a professional translation of the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of an Estate Trustee with a Will.

13On June 18, 2019, the Court issued an endorsement requiring Mr. Naftchi to prove the holograph will “in solemn form in an open court”. The endorsement notes that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee shall be served with the application and notified of all court dates. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. As part of the notice requirement, Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, that this application is before the court for adjudication and that the next of kin may have rights.

14The Public Guardian and Trustee was served with all of the relevant material, and counsel for the PGT appeared on this motion to advise that the PGT took no position on the relief sought. I am, however, grateful for counsel’s valuable assistance with respect to the legal issues raised on this motion.

15Mr. Naftchi published advertisements in the Toronto Star and the Richmond Hill Liberal providing notice of the death of Mr. Rezaee to any creditors or next of kin in September and October 2019. No one contacted the lawyer identified as the contact person in these advertisements.

16In order to have the notice published in a national newspaper in Iran, Mr. Naftchi retained a lawyer in Iran to file an application in the First Branch of Family Dispute of Shabestar County for issuance of an inheritance restriction certificate for the deceased. After receiving inquiries from the civil registry office and publishing in the official newspaper of Iran, and non-receipt of any objections, the First Branch of Family Dispute of Shabestar County certified that Mr. Rezaee does not have any legal heirs in Iran. A copy of that certificate and a certified translation has been provided to this Court. The judgment of the Iran court states:

This Court, after receiving response to inquiries from the Organization for Civil and Documents Registry indicating lack of any legal heirs related to the deceased and after following all legal procedures by three times publishing advertisements in the country’s official newspaper and not receiving any claim or offering of official or secret wills attributable to the person… certifies that the deceased does not have any legal heirs in Iran.

17The applicant also provided:

(a) The affidavit of Arian Nida confirming that he was present when the holograph will was written and signed by Mr. Rezaee.

(b) The affidavit of Nahid Lebasi confirming that he was well acquainted with the deceased’s handwriting and believes that the holograph will and signature is in the handwriting of the deceased. He also states that he was present when the document was written and signed by Mr. Rezaee.

18Mr. Naftchi was sworn as a witness in this proceeding and provided oral evidence in support of his application. Given that this was an uncontested proceeding, following his evidence in chief I followed up with additional questions.

Law Re: Holograph Wills.

19A holograph will is a will that is wholly in the handwriting of the testator and is signed by him or her. No other formalities are required. It is authorized by s. 6 of the Succession Law Reform Act, R.S.O. (1990) Chapter S.26, which provides:

A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

20The question of whether a holograph paper is a valid holograph will depends on the intention of the deceased when it was written. As stated by the Supreme Court of Canada in Bennett et al. v. Gray / Bennett et al. v. Toronto General Trusts Corporation, 1958 49 (SCC), [1958] SCR 392, at p. 396:

[A] holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature.

21The Bennett case provides that the holograph paper must be read as a whole and according to its ordinary and natural sense. The court may also consider extrinsic evidence with respect to the deceased’s intention and the surrounding circumstances: Canada Permanent Trust v. Bowman, 1962 81 (SCC), [1962] SCR 711, at p. 715; Christos Donis v. Dimitra Georgopoulous and Eleni Donis, 2014 ONSC 1427, at para. 14, appeal dismissed: Donis v. Georgopoulos, 2016 ONCA 194.

22The onus is on the person propounding the holograph will to show that the will was a deliberate or fixed final expression of intention as to the disposal of property: Bertolo v. Nadalini, 2007 1915, at para. 31.

23In addition, the court must assess whether there are any “suspicious circumstances” (Bertolo, at paras. 32-33). The index of suspicion may be raised in certain circumstances, for example, where there is evidence of compromised capacity, or undue influence, or a prior will. Where the document was executed under “suspicious circumstances” the party who seeks to rely on the instrument bears the onus of demonstrating that the testatrix had both testamentary capacity as well as knowledge and approval on a balance of probabilities: Christos Donis, at para. 82.

24See also: McGrath v. Joy, 2020 ONSC 7454, at para. 35:

Holograph wills play an important role in a testator documenting his or her intentions prior to death. As long as they are hand-written by the testator and signed by him or her, they can be admitted to probate provided that capacity is not an issue. But caution must be exercised when there are special circumstances. Unlike a formal will prepared by a lawyer, notes and observations of the lawyer taking instructions, reading over the will and due execution do not take place. Even a typed will signed by the testator and witnessed by two people can provide an opportunity for at least the witnesses to be examined as to their observations when the will was signed. Again, even this modest level of scrutiny is not available for a holograph will.

25The failure to use traditional testamentary language or appoint an executor does not prevent a holograph from qualifying as a will: Laframboise v. Laframboise, 2011 ONSC 7673, at paras. 14 and 15.

Analysis: Holograph Will

26The applicant’s motion to prove the holograph will is unopposed. While the circumstances of the discovery of the holograph will in the pocket of the applicant’s winter jacket are unusual, he has provided evidence that this holograph is in the handwriting of the deceased. There is no evidence to the contrary.

27The holograph will therefore meets the requirements of s. 6 of the Succession Law Reform Act: it is wholly in the handwriting of the deceased and is signed by him.

28I am also satisfied that the applicant has taken all necessary and reasonable measures to locate any relatives of the deceased in Canada and Iran, and that there are no legal heirs in either jurisdiction. This conclusion is supported by the facts that Mr. Naftchi paid for all of the funeral expenses, and in the more than two years since the deceased died no living relative has appeared to claim any portion of the estate.

29There is no basis to suspect that the deceased might have been incapable or under undue influence at the time the holograph was written and signed.

30While the language of the holograph does not use traditional testamentary language, I am satisfied that, given the context in which the holograph was written, it “contains a deliberate or fixed and final expression of intention as to the disposal of property upon death”. In this regard, I have considered the fact that Mr. Rezaee had been diagnosed with terminal cancer, and had been undergoing cancer treatment for one and half years when he wrote the holograph. In this context, it is reasonable to infer that he intended his “wealth and property” to be given to Mr. Naftchi after his death.

31In conclusion, after considering the contents of the document itself and after examining the evidence, it is my opinion that the document did contain a deliberate, fixed and final expression as to the disposition of the property of the deceased on his death and that it is a valid holograph will to be given full effect according to its terms.

Estate Trustee and Administrative Bond

32While the holograph will has been “proven in solemn form”, the will did not name an executor, and therefore Mr. Naftchi must apply to be the executor. He is also the sole beneficiary. The applicant has also sought an order dispensing with the administrative bond.

33Section 35 of the Estates Act establishes the statutory requirement for an administrative bond. It provides:

35. Except where otherwise provided by law, every person to whom a grant of administration, including administration with the will annexed, is committed shall give a bond to the judge of the court by which the grant is made, to enure for the benefit of the Accountant of the Superior Court of Justice, with a surety or sureties as may be required by the judge, conditioned for the due collecting, getting in, administering and accounting for the property of the deceased, and the bond shall be in the form prescribed by the rules of court, and in cases not provided for by the rules, the bond shall be in such form as the judge by special order may direct.

34The law relating to administrative bonds was set out by Brown J. (as he then was) in the case of Henderson (Re), 2008 69136 (ON SC), at paras. 6-10:

This statutory requirement for the posting of a bond most frequently arises in two situations – where a person dies intestate and an application is made for a certificate of appointment of estate trustee without a will, or where a person dies testate, but the will does not name an executor and an application is made for a certificate of appointment of estate trustee with a will…

Exemptions exist to the requirement. Section 36(1) of the Act exempts the Government of Ontario, any ministry or any provincial commission or board from the requirement to post a bond, and section 36(2) also dispenses with the need for a bond where the administration on an intestacy is granted to the surviving spouse of the deceased, the net value of the estate does not exceed the preferential share of $200,000 presently prescribed under the Succession Law Reform Act, and there is filed with the application for administration an affidavit setting out the debts of the estate. Also, section 175(4) of the Loan and Trust Corporations Act, R.S.O. 1990, c. L.25, exempts from the requirement of a bond a registered and approved trust company that applies for appointment as estate trustee.

Section 37(1) specifies the amount of the bond - double the amount under which the property of the deceased has been sworn – and then section 37(2) provides:

The judge may at any time under special circumstances reduce the amount of or dispense with the bond.

The Estates Act does not articulate the factors that a judge should take into account when considering a request to dispense with a bond, but those factors can be gleaned from the language of the bond prescribed by Form 74.32 of the Rules of Civil Procedure which imposes the following obligations on the estate trustee:

The principal as an estate trustee is required to prepare a complete and true inventory of all the property of the deceased, collect the assets of the state, pay the debts of the estate, distribute the property of the deceased according to law, and render a complete and true accounting of these activities when lawfully required. (Emphasis added)

As well, Rule 74.11(2) permits an (sic) person who has a contingent or vested interest in an estate, including a creditor, to move for an order that an estate trustee, or applicant for appointment, file a bond.

These provisions make clear that the main purpose of an administration bond is to ensure that an estate trustee pays the debts of the estate and distributes the property of the estate to those who are entitled to it. It follows, therefore, that an applicant for a certificate of appointment who seeks an order dispensing with the posting of an administration bond must satisfy the court, by way of evidence, that the protection afforded by a bond to beneficiaries and creditors is not required or will be met in some other way.

35Brown J. then sets out the required content of an affidavit in support of an order to dispense with the administrative bond, at para. 12:

(i.) The identity of all beneficiaries of the estate;

(ii.) The identity of any beneficiary of the estate who is a minor or incapable person;

(iii.) The value of the interest of any minor or incapable beneficiary in the estate;

(iv.) Executed consents from all beneficiaries who are sui juris to the appointment of the applicant as estate trustee and to an order dispensing with an administration bond should be attached as exhibits to the affidavit. If consents cannot be obtained from all the beneficiaries, the applicant must explain how he or she intends to protect the interests of those beneficiaries by way of posting security or otherwise;

(v.) The last occupation of the deceased;

(vi.) Evidence as to whether all the debts of the deceased have been paid, including any obligations under support agreements or orders;

(vii.) Evidence as to whether the deceased operated a business at the time of death and, if the deceased did, whether any debts of that business have been or may be claimed against the estate, and a description of each debt and its amount;

(viii.) If all the debts of the estate have not been paid, evidence of the value of the assets of the estate, the particulars of each debt – amount and name of creditor – and an explanation of what arrangements have been made with those creditors to pay their debts and what security the applicant proposes to put in place in order to protect those creditors.

36As indicated above, I am satisfied that Mr. Naftchi has complied with requirements (i) –(iv). He has done everything necessary and reasonable to locate any relatives of the deceased in Canada and Iran, and the evidence supports his position that there are no other potential beneficiaries of the estate. Since he is the only beneficiary, a bond is not required to ensure that the estate is distributed to all those who are entitled.

37I am not satisfied, however, that Mr. Naftchi has provided sufficient information with respect to requirements (v) to (viii).

38Mr. Naftchi did advertise for creditors in Canada and Iran, and none have come forward.

39Mr. Naftchi’s affidavit filed in support of his motion to dispense with an administrative bond states that he is unemployed and his source of income is ODSP.

40He estimates that the tax payable to obtain letters of administration for the Estate is $40,000, and he undertakes to pay that amount from the estate as soon as the amount is available from the bank.

41He also states that there is approximately $700,000 available in the bank and a home worth approximately $2,000,000.

42Mr. Naftchi’s Application for Certificate of Appointment of Estate Trustee with a Will indicates that the value of the deceased’s estate is $3,500,000, comprised of personal property worth $700,000 and real estate net of encumbrances worth $2,800,000.

43During the hearing, I asked Mr. Naftchi about the value of the deceased’s estate, and he indicated that the $700,000 was money he believed was in the deceased’s bank account, but that the real estate referred to in his affidavit had been sold by the mortgagees to cover the mortgage, and that the proceeds of sale were just enough to cover the mortgage. There was no remaining equity in the home after the sale.

44Given the inconsistency between his testimony and his affidavit, I am of the view that more information is necessary before the court can decide the motion to dispense with a bond. Mr. Naftchi’s testimony suggests that his affidavit was incorrect with regard to the value of the estate and/or the debts of the estate. This inconsistency needs to be clarified.

45Accordingly, the motion to allow Mr. Naftchi’s application for a Certificate of Appointment of Estate Trustee with a Will and to dispense with an administrative bond is dismissed, without prejudice to Mr. Naftchi bringing the motion back before me, in writing, with a further affidavit.

Conclusion

46This Court Orders:

47That the holograph will of Kamran Rezaee, dated March 20, 2018, is a valid holograph will and is probated.

48That the applicant’s motions for a Certificate of Appointment of Estate Trustee with a Will and to dispense with an administrative bond are dismissed, without prejudice to his bringing the motions back, in writing, with a further affidavit.