In the Estate of Keisha Lagrandeur
COURT FILE NO.: E-2020-10097
DATE: 2021-05-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: In the Estate of Keisha Lagrandeur (also known as Keisha Ann Andrews and Keisha Andrews)
Gaetan Lagrandeur, Moving Party
AND:
Noah Lagrandeur and Yvon Cloutier, Responding Parties
BEFORE: The Honourable Madam Justice K.E. Cullin
COUNSEL: Réjean Parisé, for the Moving Party Jordan Duplessis, for the Responding Parties
HEARD: February 26, 2021
ENDORSEMENT
[1] This matter appears before me for a motion for directions pursuant to Rule 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to the Estate of Keisha (Andrews) Lagrandeur.
Background
[2] The circumstances which have brought the parties before the court are unfortunate.
[3] Keisha (Andrews) Lagrandeur died on December 6, 2019 at the young age of 41. She died in a motor vehicle accident.
[4] Keisha was the mother of Noah Lagrandeur, born August 25, 2001 (age 19) and Evan Lagrandeur, born June 25, 2003 (age 17). Noah is attending Laurentian University and Evan is in high school.
[5] Gaetan Lagrandeur, the moving party, was Keisha’s spouse. They were married on October 11, 2003 and separated on September 1, 2014. Divorce proceedings were commenced following their separation but were outstanding at the time of Keisha’s death. In dispute were the issues of ongoing and retroactive child and spousal support, as well as equalization of the parties’ net family property. It is undisputed in the materials before me that Gaetan would have owed Keisha an equalization payment of at least $40,000.00.
[6] At the time of Keisha’s death, Noah and Evan were residing with her pursuant to an Interim Custody Order, dated November 23, 2017. The order suggests that there may have been conflict in the relationship between the boys and their father; paragraph 2 of the order provided that Keisha was to actively encourage the children to have contact with Gaetan. This conflict, which is ongoing, was confirmed by Noah in the affidavit filed in response to this motion; he indicates that his relationship with his father has been strained for approximately five years.
[7] Since Keisha’s death, Noah and Evan have been residing with Yvon Cloutier. There is some debate about the nature of Keisha and Yvon’s relationship. In their affidavits, Noah and Yvon describe it as a common-law relationship which commenced in December 2015. Gaetan has, in his affidavit, quoted paragraphs of Keisha’s affidavits in their family law proceedings denying that she was involved in a relationship with Yvon. Keisha’s affidavits, purportedly sworn on June 5, 2015 and November 20, 2015, were not filed with the court in this proceeding.
[8] The Order of November 23, 2017 required Gaetan to pay child support to Keisha in the amount of $1,661.00 per month. In his affidavit, Gaetan indicates that his support obligations were paid through the Family Responsibility Office and were current on the date of Keisha’s death. Both Noah and Yvon indicate that Gaetan has paid no child support for either Noah or Evan since Keisha’s death; the boys are being supported by Yvon with the assistance of insurance funds and benefits that they received following their mother’s death. Although Gaetan indicates that he has, “every intention” of ensuring that his children are provided for, he has not disputed the evidence that he has provided no financial support to his sons since their mother’s death in 2019.
[9] With respect to testamentary documents, there are two relevant documents before the Court: (1) the “Last Will and Testament of Keisha Lagrandeur”, dated September 21, 2004; and, (2) the RBC Insurance “Change of Beneficiary” form of Keisha Andrews, dated April 22, 2019.
[10] On July 28, 2020, Yvon and Noah filed a Notice of Objection (Form 75.1) objecting to the appointment of either Gaetan Lagrandeur or Marc Guerin as the estate trustee of the Estate of Keisha Lagrandeur. On October 1, 2020, Gaetan filed an Application for Certificate of Appointment of Estate Trustee with a Will; the application sought the appointment pursuant to the provisions of the Will dated September 21, 2004.
[11] As of the date of this motion, the RBC life insurance policy has not yet been paid. The policy is the estate’s most significant potential asset, having a face value of $800,000.00.
Issues
[12] In this motion, I have been asked to provide directions with respect to the following issues:
a. Whether the Application of Gaetan Lagrandeur to be estate trustee of the Estate of Keisha Lagrandeur should be granted and the Objection of Yvon Cloutier and Noah Lagrandeur struck; and,
b. Whether Yvon Cloutier and Noah Lagrandeur should pursue their remedies against the estate in an application, as opposed to objecting to Gaetan Lagrandeur’s application to be appointed as estate trustee.
[13] It is my view that, in order to provide directions, I must first consider the following issues:
a. Is the Last Will and Testament of Keisha Lagrandeur, dated September 21, 2004, a valid testamentary instrument within the meaning of the Succession Law Reform Act, R.S.O. 1990, c.S-26; and,
b. What are the potential claims of the parties with respect to the Estate of Keisha Lagrandeur.
Analysis
Is the Last Will and Testament of Keisha Lagrandeur, dated September 21, 2004, a valid testamentary instrument within the meaning of the Succession Law Reform Act, R.S.O. 1990, c.S-26?
[14] On September 21, 2004, a document was completed which purports to be the Last Will and Testament of Keisha Lagrandeur (the “Will”). Keisha was married before and separated after the execution of the Will; although separated, she was still legally married to Gaetan. The Will is her only known testamentary document.
[15] Gaetan submits that there is no evidence suggesting that the Will was improper or untoward in any way. Noah and Yvon submit that no issue is being taken with respect to the validity of the Will.
[16] In reviewing the Will on its face, I have concerns about whether it meets the statutory criteria to qualify as a will within the meaning of the Succession Law Reform Act, R.S.O. 1990, c.S-26 (“SLRA”).
[17] Although I have not been asked to rule on the validity of the Will in this motion, it is my view that I must consider this issue as it will impact upon the directions that I will be providing. While Noah and Yvon may not contest the validity of the Will, the court must still be concerned about the position of the minor beneficiary, Evan, whose interest in the estate will be impacted if the Will is deemed to be valid.
[18] The Will is a one-page document that is typewritten but also contains handwritten instructions regarding the names of Keisha’s estate trustees, the guardians of her minor children, the name of one of her beneficiaries, the trust provisions for minor beneficiaries and her funeral instructions. With one exception, the handwritten instructions are not initialled or dated. Standing alone, the handwritten instructions would be insufficient to constitute a testamentary instrument.
[19] With respect to its execution, the Will is dated. Typed immediately below the line where Keisha appears to have signed is the word “Witness”. There are two other signatures at the bottom of the Will, presumably belonging to witnesses; the signatures are illegible.
[20] The application filed with the court was accompanied by an affidavit of execution, signed by Joel Lagrandeur, confirming that the execution of the Will was witnessed by himself and Lynne Lalonde. There is no affidavit evidence in the materials before me confirming when and by whom the handwritten instructions in the Will were prepared.
[21] In Re Dixon-Marsden Estate (1985), 21 E.T.R. 216, the court considered whether a document containing both typewritten and handwritten testamentary instructions could be construed as a single testamentary document by way of the doctrine of incorporation by reference. In that case, the Will was unwitnessed, and the Court found that the typewritten and handwritten instructions could not be read together as they did not satisfy the statutory requirements of a holograph will.
[22] Comments made by the court in obiter raise questions about whether a testamentary document that contains both typewritten and handwritten instructions must explicitly declare the intention to incorporate the typewritten instructions in order to be valid (Re Dixon-Marsden Estate, para. 23):
There is no difficulty with the doctrine of incorporation when the will into which the typewritten words are to be incorporated is a witnessed will. When those typewritten words are declared incorporated, the statutory requirement of the testator’s signature duly witnessed is fully satisfied. (emphasis added)
[23] Prior decisions examining the issue of pre-printed will forms have suggested that, provided that a will is properly witnessed, the fact that portions of the Will are typed and portions are handwritten is not fatal to qualifying the document as a valid will (Pears v. Pears, 2001 ABQB 657 (para. 14); Sunrise Gospel Hour v. Twiss, 1967 CarswellAlta 22, para. 16; Brown Estate, Re, 1953 CarswellAlta 6). Most of these prior decisions, however, are in provinces with estate administration regimes that only mandate “substantial compliance” with statutory will requirements; it is less clear how such wills would be regarded in Ontario which currently requires “strict compliance” with statutory will requirements.
[24] In the present case, the Will does not specify that the typewritten and handwritten instructions are to be incorporated or read together, and it is impossible on the record before me to determine when and by whom the handwritten instructions were prepared.
[25] At minimum, if either of the parties wish to proceed on the basis that the Will is valid, they will be required to file affidavit evidence from an individual who was present at the execution of the Will confirming that the handwritten portions of the Will were prepared by Keisha, that they were prepared by her before she signed the Will, and that they have not been altered since the Will was signed and witnessed.
[26] In the absence of this evidence, regardless of the position of the parties regarding the validity of the Will, the court cannot accept the Will for probate and the estate will be required to proceed as an intestacy.
What are the potential claims of the parties with respect to the Estate of Keisha Lagrandeur?
[27] Regardless of whether the estate proceeds by probating the Will or by intestacy, there are several parties who have potential claims against the estate.
[28] If the Will is established to be valid, Gaetan is the sole beneficiary of Keisha’s estate in accordance with the terms of the Will. This will be subject to any dependant support claims advanced by Yvon, Noah and/or Evan, pursuant to Part V of the SLRA.
[29] If the Will is invalid and the estate proceeds as an intestacy, as Keisha’s “spouse” within the meaning of the SLRA, Gaetan is entitled to an interest in her Estate pursuant to Part II of the SLRA. The recent amendments to the SLRA precluding such claims by separated spouses are not applicable in this case. In the event of an intestacy, Noah and Evan are entitled to share 2/3 of the net value of Keisha’s Estate in excess of $200,000.00. All these property claims are subject to any dependant support claims advanced by Yvon, Noah and/or Evan, pursuant to Part V of the SLRA.
[30] Gaetan also has the right, pursuant to s.6 of the Family Law Act, R.S.O. 1990, c.F-3 (“FLA”), to elect to receive an entitlement pursuant to s.5 of the FLA rather than to pursue his interest in Keisha’s estate as a beneficiary of her Will or her intestate estate. This election, however, must be made within six months of death; there is no evidence before me that Gaetan made this election.
[31] As previously noted, Gaetan and Keisha were involved in ongoing divorce proceedings at the time of her death. As those proceedings were unresolved, there is an issue about what now happens to them.
[32] Gaetan takes the position that, pursuant to s. 5(2) of the FLA, he is entitled to pursue a claim to equalize his and Keisha’s net family property, based upon the value of her estate on the date of her death. It was not clear to me whether he takes the position that this claim is over and above any entitlements that he would have either as a beneficiary of the estate or, if elected, pursuant to s.6 of the FLA.
[33] Noah and Yvon disagree. They take the position that, pursuant to s.7(2)(a) of the Family Law Act, the estate trustee of Keisha’s estate may continue the proceedings commenced by her prior to her death. As previously noted, this would result in an equalization payment being owed to Keisha’s estate by Gaetan.
[34] Although this was not specifically addressed in arguments, any claim by Keisha for retroactive spousal support was a personal claim that likely ended with her death (Kalawarny Estate v. Fife, 2016 MBQB 146). Her estate may, however, be able to pursue claims for retroactive child support against Gaetan (Lesser v. Lesser, 1985 CanLII 2049 (ON SC), aff’d 1985 CanLII 2008 (ON CA)).
[35] In addition to any support claim, Yvon also has unsecured debt claims against Keisha’s estate. In his affidavit, Yvon attests that, in May 2017, he loaned $9,000.00 to Keisha to assist her in paying her ongoing expenses. He further attests that in or around June 2017, he secured a loan from the Royal Bank of Canada in the amount of $50,000.00 to pay high interest credit card debt which continues to be the subject of dispute in the divorce proceeding between Keisha and Gaetan. If proven, these will be debts of the estate.
[36] Finally, although not a claim, there appears to be a legal issue with respect to Keisha’s life insurance policy with RBC. The policy is substantial, having a face value of $800,000.00.
[37] Gaetan takes the position that Keisha’s life insurance policy is payable to her estate, and he has provided funds for the estate administration tax based upon an estate value that reflects this position. If Gaetan’s position is accepted, Keisha’s estate is worth approximately $1,066,780.37 and the estate administration tax will be $15,255.00.
[38] Noah and Yvon take the position that Keisha signed a Change of Beneficiary form on April 22, 2019, which designated Noah and Evan as the beneficiaries of 80%, and Yvon as the beneficiary of 20%, of her life insurance policy. Yvon was designated as the trustee for Noah and Evan, who were minors when the form was executed. For reasons which are unexplained in Yvon’s affidavit, the change of beneficiary form was provided to RBC post-mortem. It is not clear on the record before me what impact, if any, the delayed submission of the form will have on the distribution of the insurance proceeds.
[39] It was suggested in submissions that the circumstances of Keisha’s death may also give rise to claims pursuant to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A (“WSIB”). When I asked whether a claim had been submitted on behalf of the estate and its beneficiaries, I was advised that one had not, but that there was no deadline to submit such a claim. This is incorrect. Pursuant to the Act, claims for WSIB survivor benefits must be submitted within six months of the worker’s death; this deadline can be extended however such an extension is within the discretion of WSIB. If such a claim is going to be pursued, it must be addressed as soon as possible.
Should the Gaetan Lagrandeur’s application to be appointed as estate trustee of the Estate of Keisha Lagrandeur be granted and the Objection of Yvon Cloutier and Noah Lagrandeur struck? Should Yvon Cloutier and Noah Lagrandeur instead pursue an application against the Estate?
[40] Noah and Yvon submit that Gaetan is in an irreconcilable conflict of interest, and that it would be inappropriate for him to be appointed as the estate trustee of Keisha’s estate. They note that the estate has claims against Gaetan personally, and that appointing him as estate trustee would give him the authority to discontinue those claims. They also submit that Gaetan’s lack of good faith in addressing the issue of child support makes him an unsuitable choice to direct the estate’s position with respect to the issue of dependant’s support.
[41] Gaetan submits that the objections by Noah and Yvon to his appointment as estate trustee are not “true objections”. He argues that the court’s objective at this stage should be limited to ensuring that an estate trustee is appointed in order to identify and secure the assets of the estate, and to establishing the authority under which the estate trustee will be acting (that is, by will or by statute). It is his position that his appointment as estate trustee would not preclude Noah, Evan and Yvon from pursuing their SLRA claims against Keisha’s Estate.
[42] Regardless of whether the Will is determined to be a valid testamentary instrument, or whether the estate proceeds by way of intestacy, the considerations by the court in assessing Gaetan’s application to be appointed as estate trustee are similar.
[43] The Court of Appeal has stated that a party seeking to “pass over” an estate trustee named in a will faces a high bar. In Re Weil, 1961 CanLII 157 (ON CA), Laidlaw J.A. expressed the following:
The Court should not lightly interfere with the discretion exercised by a person in choosing the person or persons to act as his executors and trustees…There can be no doubt that the Court has power to remove a personal representative of the estate of a deceased person for cause, but the effect of the order now in appeal is to remove one of the executors before letters probate have been granted to him. In substance the Court has declared that he should not be permitted to be a party to the administration of the estate, notwithstanding he was the choice of the testator. It seems to me that such an interference with the discretion and choice of a person in preparing his last will and testament must be not only well justified but, as has been said before, must amount to a case of clear necessity.
[44] In Re Becker, 1986 CanLII 2596 (ON SC), the court considered whether a conflict of interest arising from an estate trustee’s personal interest in the estate was an appropriate basis upon which to “pass over” an estate trustee named in a will. In deciding that it was appropriate, Kovacs Surr. Ct. J., reasoned as follows:
In the case at bar the perceived conflict of interest is between the executor and his interest in his personal capacity. If the action is instituted by the applicants it would be against the respondent. It is self-evident that the respondent, in his capacity as executor, cannot conscientiously (as a plaintiff) attack the gift and the transfers of securities to himself while at the same time maintaining in his personal capacity that the gifts and transfers were proper. That will not be a potential conflict; it will be actual. In making such a finding I in no way prejudge the case. I simply find the respondent cannot conscientiously act as a plaintiff (in his capacity as executor) in a case in which he will be the defendant. I find I can make that finding now, and I so find; therefore, the application is not premature. The passing over of the respondent is therefore justified and clearly necessary.
[45] The authority of the court to appoint an estate trustee in the event of an intestacy is set out in s.29(1) of the Estates Act, R.S.O. 1990:
29 (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,
(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin,
as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.
[46] This authority is subject to “special circumstances”, which are described in s.29(3) as follows:
29 (3) Where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof willing and competent to take probate, or where the executor was at the time of the death of such person resident out of Ontario, and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased, or of any part of such property, other than the person who if this subsection had not been enacted would have been entitled to the grant of administration, it is not obligatory upon the court to grant administration to the person who if this subsection had not been enacted would have been entitled to a grant thereof, but the court may appoint such person as it thinks fit upon his or her giving such security as it may direct, and every such administration may be limited as it thinks fit.
[47] In appointing an estate trustee for an intestate estate, the court has an unqualified discretion to make such appointment as it deems to be appropriate and in the best interests of the administration of the estate. This discretion is not superseded by s.29(1) of the Estates Act (Public Guardian and Trustee v. Duggan, 1998 CanLII 14929 (ON SC); Mohammed v. Heera, 2008 CanLII 54317 (ON SC)).
[48] Having considered the circumstances in this case, I find that this is an exceptional situation and one in which “clear necessity” dictates that Gaetan Lagrandeur’s application to be appointed as the estate trustee of the Estate of Keisha (Andrews) Lagrandeur must be denied. The respondents have satisfied me that such an order is appropriate both with respect to an appointment pursuant to the Last Will and Testament of Keisha Lagrandeur, dated September 21, 2004, and with respect to an appointment pursuant to s.29(1) of the Estates Act in the event of an intestacy.
[49] Much like the respondent in Re Becker, Gaetan presents to the court as a party having a clear conflict of interest with the estate. The administration of the estate will require the estate trustee to make decisions about pursuing the estate’s claim, if any, for retroactive child support and to continue its claim for division of property pursuant to ss.5 and 7(2) of the Family Law Act. Not only are these claims being made against Gaetan personally but, with respect to the property division claims, Gaetan has advised the court in his affidavit evidence that he takes the position that such claims are not permitted. These are irreconcilable interests.
[50] Gaetan also presents to the court as a party in conflict with the estate’s potential beneficiaries and dependants. The affidavit evidence of Noah and Yvon discloses that the relationship between the boys and their father is strained, and that they have had little contact with him during the past five years. This evidence has not been disputed by Gaetan. Indeed, Gaetan’s affidavit appears to be primarily concerned with his financial interest in Keisha’s estate and says nothing about his relationship with his children other than to pay lip service to his intention to “assure” that they are “adequately provided for”. Gaetan’s affidavit also provides detailed evidence disputing Yvon’s potential position as Keisha’s common-law partner, which places him in a conflict of interest both as a party and as a witness should Yvon advance a dependant’s support claim pursuant to the SLRA.
[51] I also have significant concerns about Gaetan’s bona fides as a potential trustee of Noah and Evan’s beneficial interests in and support claims against Keisha’s estate. At the time of Keisha’s death, she was in receipt of child support from Gaetan. Upon Keisha’s death, Gaetan’s child support payments terminated. It is undisputed in the evidence before me that Gaetan has paid no support for the benefit of his children since Keisha’s death, notwithstanding the fact that Noah is attending university and Evan is attending high school. Regardless of whether the children have received funds from their mother’s estate, it is my view that it is wholly incompatible to profess an intention to ensure that the children are supported while taking no steps to provide even nominally for their support in the 18 months since their mother’s death when they are clearly unable to support themselves. I am left with the indelible impression that Gaetan is either unwilling or unable to put his children’s financial best interests ahead of his own.
[52] Keisha has left a substantial estate and it is clear from the evidence before me that the arena is being prepared for a battle between Gaetan and his children about the entitlement to that estate. Gaetan has signalled his intention to maximize the value of the estate, a pathway which only serves to benefit him. I find that his personal interests place him in conflict with the best interests of the estate and its beneficiaries, and that it would be inappropriate to appoint him as estate trustee.
[53] With respect to the position of Noah and Yvon with respect to the estate, it is my view that it is premature to assess their role in estate’s administration. The validity of the Will is in dispute and there is an alternate estate trustee named in that Will. While I appreciate that the notice of objection also opposes the appointment of the alternate estate trustee, there is no evidence before me upon which to assess that objection.
What directions, if any, should be given with respect to the Estate of Keisha (Andrews) Lagrandeur?
[54] Further to the submissions of the parties and my findings above, I make the following directions and orders with respect to the Estate of Keisha (Andrews) Lagrandeur:
a. That the application of Gaetan Lagrandeur to be appointed as estate trustee of the Estate of Keisha (Andrews) Lagrandeur, either pursuant to the Last Will and Testament of Keisha Lagrandeur dated September 21, 2004 or pursuant to s.29 of the Estates Act in the event of an intestate Estate, is denied. If the Will is validated, Gaetan Lagrandeur is to be “passed over” as the estate trustee.
b. That any party seeking to establish the validity of the Last Will and Testament of Keisha Lagrandeur dated September 21, 2004 shall serve and file any supporting documents, and specifically any affidavit evidence with respect to the handwritten portions of the Will, within 30 days of the date of this endorsement. Any party seeking to dispute the validity of the Will shall have 30 days thereafter to serve and file responding materials.
c. That, in the event that the alternate estate trustee named in the Last Will and Testament of Keisha Lagrandeur dated September 21, 2004 does not submit an application to be appointed as estate trustee within 60 days of the date of this Endorsement, any other party seeking to be appointed as estate trustee may submit an application to the court.
d. That a return date of this matter shall be scheduled at the earliest availability of the parties and the court to discuss the appointment of either an interim Administrator pursuant to s.28 of the Estates Act, or an Estate Trustee During Litigation pursuant to Rule 75.06(3)(f) of the Rules of Civil Procedure.
e. That, within 60 days of the date of this endorsement, any of the potential beneficiaries of the estate or the Royal Bank of Canada may bring a motion in this proceeding for the payment into court of the insurance funds payable under RBC Policy No MM125307 in the name of Keisha Andrews. If the motion proceeds on consent, it may be submitted to the court as a motion in writing, and any consent order would be made without prejudice to the right of any party in seeking a finding with respect to the effect of the RBC Insurance “Change of Beneficiary” form of Keisha Andrews, dated April 22, 2019.
f. That a copy of this endorsement shall be served upon RBC through its legal counsel by the applicant, and proof of service shall be filed with the court within 30 days of the date of this endorsement.
g. That a copy of this endorsement shall be filed in the court file for the divorce proceedings between Gaetan Lagrandeur and Keisha (Andrews) Lagrandeur, specifically Sudbury Court File No. D-21093-15. No party may take steps to dismiss that proceeding for delay, nor is there to be an administrative dismissal of that proceeding for delay, without a court order.
h. That the parties may make written submissions with respect to the issue of costs, with submissions not to exceed 5 pages plus any costs outline, within 30 days of the date of this endorsement.
i. That I will remain seized of this matter until an estate trustee has been appointed.
[55] I would note that I considered whether to order the service of pleadings upon the Office of the Children’s Lawyer. I have elected not to make such an order as Evan will reach the age of majority on June 23, 2021 and it appears unlikely that this matter will be resolved in advance of his 18th birthday. The involvement of the OCL between now and June 23, 2021 can be revisited at the request of any interested party by submitting correspondence to court through the court office.
K.E. Cullin, J.
Date: May 11, 2021