De Sante v. De Sante, 2022 ONSC 2957

COURT FILE NO.: CV-21-00661324-00ES

DATE: 20220525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JASON MATTHEW DE SANTE and STEPHANIE DE SANTE

Responding Parties/Applicants

– and –

RON SANDELLI, DANA DE SANTE and RITA DE SANTE

Moving Party/Respondents

– AND –

JASON MATTHEW DE SANTE and STEPHANIE DE SANTE

Moving Parties/Applicants

– and –

RON SANDELLI, DANA DE SANTE and RITA DE SANTE

Responding Party/Respondents

Nikhil Mukherjee and Andrew Rogerson, for the Applicants Jason Matthew De Sante and Stephanie De Sante

Emilio Bisceglia, for the Moving Party/Respondent Ron Sandelli, Dana De Sante, Self-represented, and A. Sean Graham, for the Respondent Rita De Sante

Nikhil Mukherjee and Andrew Rogerson, for the Moving Parties/Applicants Jason Matthew De Sante and Stephanie De Sante

Emilio Bisceglia, for the Respondent/Responding Party Ron Sandelli, Dana De Sante, Self-represented, and A. Sean Graham, for the Respondent Rita De Sante,

HEARD: May 3, 2022

reasons for decision

Dietrich J.

Overview

1Vincent Michael De Sante (the “Deceased”) died on March 29, 2021 at 94 years of age. He was predeceased by his wife, Yolanda Gloria De Sante (“Yolanda”), in 2019 and by his only child, Nick De Sante (“Nick”), in 2016.

2The Deceased was survived by his only two grandchildren, the applicants Jason Matthew De Sante and Stephanie De Sante, who are Nick’s children. The Deceased was also survived by Nick’s widow, Gaetane De Sante (“Gaetane”); his younger sister, the respondent Rita De Sante (“Rita”); and nieces and nephews, including the respondent, Dana De Sante (“Dana”).

3The Deceased made two wills in 2019, one on April 23 and another on July 11 (the “2019 Wills”). In each of the 2019 Wills, the Deceased appointed the respondent Ron Sandelli (“Ron”), who is Yolanda’s nephew, as the Estate Trustee, Executor and Trustee, and the Deceased appointed his nephew, Dana, as the alternative Estate Trustee, Executor and Trustee. Neither Ron nor Dana is named as a beneficiary in either of the 2019 Wills. Under the 2019 Wills, each of the applicants is entitled to a legacy of $25,000; other legatees are entitled to specified amounts; and the residue of the Deceased’s estate (the “Estate”) is divided equally between Gaetane and Rita.

4The Deceased also made a will on September 19, 2017 (the “2017 Will”) in which he appointed Yolanda as the Estate Trustee, Executrix and Trustee, and he appointed Gaetane as the alternative Estate Trustee, Executrix and Trustee. In the 2017 Will, he left his entire estate to Yolanda if she survived him for thirty days, failing which, he left each of the applicants a legacy of $250,000; he left Rita a legacy of $50,000; and he left the residue of his Estate to Gaetane, with a gift over to her issue in equal shares per stirpes if she were not alive to take the residue.

5Following the Deceased’s death, and in reliance on his appointment as Estate Trustee, Executor and Trustee in the Deceased’s July 11, 2019 Will, Ron began to administer the Estate.

6On April 6, 2021, the applicant Stephanie De Sante filed an objection to Ron’s appointment as an executor and trustee of the Estate. On April 28, 2021, the applicants also brought the within application in which they challenge the 2019 Wills. They allege that the Deceased did not have testamentary capacity at the time he executed the 2019 Wills, that those wills were made as a result of undue influence, and that there were suspicious circumstances surrounding the execution of those wills. The applicants challenge the validity of the 2017 Will as well. The applicants would benefit from the entire Estate if the Deceased died intestate.

7There are two motions before the court. In the first, Ron brings a motion seeking an order appointing himself as Estate Trustee During Litigation (the “ETDL”). In the second, the applicants bring a motion seeking an order appointing RSM Canada LLP, or some other professional estate trustee, to be the ETDL. They also seek an order giving directions regarding the issues to be tried on the hearing of their application; an accounting by Ron for his actions as an executor and trustee; the production of documents; the transfer of certain Estate chattels to the applicants as custodians; a preservation order of the Estate assets; the issuance of a statement of claim against Rita regarding her occupation of the Deceased’s residence; and the exchange of materials between the parties, discovery, and mediation in accordance with a timetable.

8For the reasons that follow, in the first motion, an order shall issue appointing Ron as the ETDL of the Estate, on terms, pending the final resolution of the litigation in this matter. In the second motion, I decline to appoint RSM Canada LLP or another professional estate trustee to be the ETDL of the Estate. An order giving directions shall issue requiring Ron to produce an informal accounting of his administration as executor and trustee of the Estate, ordering production of medical records, and granting interim custody of certain Estate chattels to the applicants. I decline to grant an order authorizing an action against Rita regarding her occupation of the Deceased’s residence. The other orders sought in the applicants’ notice of motion for an order giving directions are agreed to by Ron.

Background Facts

9The Deceased and Yolanda always lived in the City of Vaughan. Their jointly-owned residence was located at 71 Dorwood Court (the “Residence”). The Residence forms part of the Estate and has a value of approximately $1,800,000. In addition, the Deceased owned a portfolio of investments held by Scotiabank Wealth, with a value of approximately $1,700,000 at the time of his death. Ron believes that these assets are the principal assets of the Estate. The applicants believe that the Estate may be entitled to amounts owing on loans Yolanda made, which would now form part of the Estate.

10Nick, Gaetane, and the applicants moved to Ottawa in the early 2000s but stayed in touch with the Deceased and Yolanda. Following Nick’s death in 2016, both the Deceased and Yolanda experienced a decline in their health. Gaetane would visit them in Vaughan from time to time and care for them.

11In 2016, following Nick’s death, Rita began spending more time visiting with the Deceased and Yolanda, and she too provided care services to both of them. In 2017, Gaetane was less free to come to Vaughan to spend time with the Deceased and Yolanda because she was looking after the applicant Jason Matthew De Sante, who had been hospitalized in Ottawa in 2017.

12The Deceased was diagnosed with Alzheimer’s disease in 2018.

13In 2019, following Yolanda’s death, the Deceased invited Rita to move into the Residence to serve as his live-in caregiver. Rita provided those services from August 2019 until his death in March 2021. Ron’s evidence is that Rita told him that she received no compensation for the caregiving services she provided to Yolanda from 2016 to 2019 and to the Deceased from 2016 to 2021.

14The 2019 Wills were prepared by Tony Spagnuolo of Spagnuolo Professional Corporation.

15In the applicant Stephanie De Sante’s notice of objection, she objected to the issuance of a Certificate of Appointment of Estate Trustee with a Will to either Ron or Dana. She alleges that any writing dated in 2019 purporting to be a will was not duly executed by the Deceased and/or that the Deceased lacked testamentary capacity on the date of any such writing of any such wills.

16On April 28, 2021, the applicants commenced the within application in which they are challenging both the 2019 Wills and the 2017 Will.

17Ron filed an application for a Certificate of Appointment of Estate Trustee with a Will on April 19, 2021. He also filed a notice of appearance in response to the within application on May 21, 2021.

Ron’s Motion

Issues

18The issues in Ron’s motion are as follows:

1. Is it necessary and appropriate to appoint an ETDL?

2. If yes, is this an appropriate case in which to appoint Ron, a respondent in the application, as the ETDL?

3. If no, is the applicants’ proposed neutral ETDL suitable and appropriate?

Positions of the Parties

19Ron submits that the court should appoint him as the ETDL of the Estate pending the resolution of the litigation. He contends that he is a neutral party in the proceedings; that he was asked by the Deceased in March 2019 to take on the role of executor and trustee and then was subsequently appointed as the executor and trustee in the 2019 Wills; and that he has acted efficiently and expeditiously in his administration of the Estate for the benefit of all of the beneficiaries of the Estate. Ron asserts that he takes no position on the merits of the application. He has no vested interest in the outcome of the litigation and is motivated only by his desire to administer the Estate in accordance with the Deceased’s wishes.

20Ron also submits that the administration of the Estate is not especially complex. However, maintenance of the residence requires regular expenses to be paid out of the Estate. Scotiabank is holding the Deceased’s investment portfolio, but the Residence, now vacant, requires ongoing insurance, maintenance and upkeep. Further, while Scotiabank will release funds for essential expenses (e.g., property taxes, utilities, furnace rental, elevator maintenance), in the absence of a Certificate of Appointment of Estate Trustee or beneficiary consent, Scotiabank has declined to release funds for expenses like housekeeping or fumigation. Ron submits that without proper upkeep and maintenance of the Residence, its maximum value will not be realized on a sale.

21The applicants assert that Ron should not be permitted to act as ETDL irrespective of the fact that he has no beneficial interest in the outcome of the will challenge. They assert that even though Ron has no beneficial interest under the impugned 2019 Wills, he is a party to the litigation, and someone connected to the parties who are beneficially interested in the outcome.

22The applicants assert that RSM Canada LLP or some other professional estate trustee should be appointed as the ETDL.

23Neither Rita nor Dana filed responding materials. Neither takes a position on Ron’s Motion.

Legal Principles

24Section 28 of the Estates Act, R.S.O. 1990, c. E.21 permits the court to appoint an administrator of an estate pending an action to administer the property of the deceased, and the court may direct that such administrator shall receive out of the property of the deceased such reasonable remuneration as the court considers proper.

25Rule 75.06(3)(f) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) permits the court to direct that an estate trustee during litigation be appointed.

26The court will favour the appointment of an ETDL in the vast majority of contested cases unless the administration of the estate involved is particularly straightforward or simple: Cabrera v. Coughlan, 2022 ONSC 1087, at para. 16.

Analysis

1. Is it necessary and appropriate to appoint an ETDL?

27The parties do not disagree that the appointment of an ETDL is necessary and appropriate. However, they disagree on whom should be appointed to serve in that role. While the Estate assets in this case are not particularly complex, the role of the ETDL will involve the sale of the Residence and the management of close to $3.5 million of Estate assets until the litigation is resolved. I find that the appointment of an ETDL is necessary and appropriate in this case.

2. Is this an appropriate case in which to appoint Ron, a respondent in the application, as ETDL?

28Where the appointment of an ETDL is considered to be appropriate, the court, in exercising its discretion, may consider the following factors as set out in Baran v. Cranston, 2020 ONSC 589, at para. 24 and Cabrera, at para. 17:

1. Whether a trustee may be a witness in the litigation;

2. Potential for conflict of interest;

3. Conflict between the interests of the trustees and/or beneficiaries;

4. Lack of communication between the parties; and

5. Evidence of settlement discussions that exclude some of the parties.

29In Mayer v. Rubin, 2017 ONSC 3498, at para. 36, Justice Myers stated as follows:

… [i]t is in the interests of all beneficiaries that the assets of the estate be immunized from the tactics employed by litigating parties. The court must protect the level playing field. Neither side should be able to use their control over the estate to benefit themselves or to prejudice the other. It is a simple inference that a trustee who is in an adversarial position towards a co-trustee or a beneficiary should not normally be left in charge of trust property. Simple prudence calls for the temporary replacement of a trustee who is in an adversarial position with a co-trustee or a beneficiary…

30The applicants rely on Re Bazos, 1964 CanLII 258 (ON CA), [1964] 2 O.R. 236-238 (C.A.), in which the Court of Appeal held that as a general rule, except on consent, the court will not appoint one of the parties to a proceeding as ETDL. A party unconnected to the litigation is the most likely and proper person to be appointed. However, the Court of Appeal also held that the rule is not absolute, and it can be departed from in a strong case.

31In my view, Ron presents a strong case. He is not a person in an adversarial position in the litigation at this time. He has no financial or beneficial interest in the Estate under either of the 2019 Wills or the 2017 will, and he is not a blood relative of any beneficiary under any impugned Will (though his stepsister Linda Shelman is entitled to a legacy of $50,000 under the July 11, 2019 Will). While the applicants are critical of certain steps he has taken in the administration of the Estate, I find that Ron has endeavoured to engage the applicants in the process and to keep them apprised. However, they have not always cooperated or even responded to his communications. It is clear that the applicants would prefer the appointment of a professional trustee, but they have not, in my view, shown that Ron is an inappropriate choice to serve as ETDL.

32Ron is a neutral party in the will challenge. I accept Ron’s evidence that he was asked by the Deceased to act as an executor and trustee of the Deceased’s estate because he was not a beneficiary of the 2019 Wills and was seen by the Deceased to be neutral. Following the Deceased’s death, Ron took on the role in the belief that he was carrying out the Deceased’s wishes. In that role, Ron arranged for the Residence to be insured and maintained; he filed the outstanding tax returns on behalf of the Deceased with the assistance of the Deceased’s accountant; and he attempted to engage the beneficiaries in matters relating to the Estate by seeking their consent to the payment of certain expenses relating to preparing the Residence for sale. When the beneficiaries declined to consent to the payment of certain expenses, Ron paid those expenses personally. Because Ron has no beneficial interest in the Estate, putting him in control of the property on a temporary basis does not give him an opportunity to benefit himself to the prejudice of the beneficiaries.

33The applicants’ challenge to the 2019 Wills does not directly implicate Ron. There is no evidence to suggest that he was involved in the preparation or execution of them.

34The applicants assert that Ron could, nonetheless, be called as a witness regarding the Deceased’s alleged incapacity. In my view, any testimony that Ron could offer regarding the Deceased’s capacity to make the 2019 Wills would likely be of limited use when compared to the more compelling evidence likely to come from Mr. Spagnuolo, who drafted the 2019 Wills. Mr. Spagnuolo’s files were ordered to be produced by Justice Penny on December 14, 2021. The Deceased’s medical records would likely also provide helpful evidence on the Deceased’s capacity. The applicants seek production of those records as well.

35The applicants do not allege that Ron exerted undue influence over the Deceased in the making of the 2019 Wills. However, they submit that he may have evidence of undue influence allegedly exercised by Rita over the Deceased. But Rita is a party to the litigation, and they can examine her directly. The applicants also allege suspicious circumstances around Ron’s appointment as an executor and trustee, but they have not substantiated this allegation.

36If Ron were called as a lay witness to testify regarding the Deceased’s capacity or alleged undue influence exerted on the Deceased, the continuation of his role as ETDL could be re-assessed at that time.

37Ron has the consent to his appointment as ETDL from five of the nine beneficiaries of the July 11, 2019 Will, each of whom is a legatee. Rita takes no position on Ron’s appointment as ETDL. The applicants and Gaetane oppose his appointment. Though they oppose Ron’s appointment and are critical of some aspects of his administration of the Estate, I do not find that there is hostility between them and Ron.

38In April 2021, the applicant Jason Matthew De Sante surreptitiously recorded two discussions between Ron and him relating to the Estate, while they were both at the Residence. The recordings were produced pursuant to this applicant’s undertaking made on his cross-examination. This applicant makes no submission regarding these recordings. Ron submits that the recordings do not support the applicants’ position on the motions or the application but rather support Ron’s appointment as ETDL. Therefore, Ron submits that an inference should be drawn that there is no evidence of hostility between Ron and the applicant Jason Matthew De Sante.

39The applicants also challenge Ron’s ability to gather in all of the assets of the Estate, including the entirety of the Deceased’s entitlement to Yolanda’s estate, which may have included outstanding loans payable to her. There is no evidence to suggest that Ron would not be up to this task. Ron submits that he has already committed to investigating the status of these loans.

40The applicants are very critical of Ron’s decision to permit Rita to stay in the Residence for a period of six months following the Deceased’s death on a rent-free basis. Rita was approximately 83 years of age at that time. The applicants submit that this rent-free tenancy was prejudicial to the best interests of the Estate. Ron responds to this allegation by submitting that on the Deceased’s death, Rita had no other home because she had given up her residence in Owen Sound to move into the Residence to be available to care for the Deceased. Ron believes that Rita provided her care services gratuitously. Further, Ron submits that it would likely have taken at least six months to evict Rita De Sante from the Residence during the pandemic if he followed a proper eviction process, and Rita challenged that process. In addition, Ron submits that it was much more economical to have Rita remain a resident in the Residence for those six months following the Deceased’s death because it allowed him to insure the Residence as occupied, as opposed to vacant, which resulted in considerably lower premiums. The issue of whether Rita’s rent-free tenancy was a proper exercise of Ron’s discretion, as an executor and trustee, can be canvassed on a passing of accounts by Ron, if necessary.

41The applicants are also critical of Ron’s handling of the Deceased’s jewelry, including the timing of his preparation of an inventory. The jewelry has since been deposited into a safety deposit box at CIBC.

42The applicants also allege that Ron did not communicate with the applicants and Gaetane regarding the administration of the Estate. This allegation was largely refuted in the cross-examinations of each of the applicant, Jason Matthew De Sante, and Gaetane. Jason Matthew De Sante admitted, under cross-examination, that he was not seeking any information about the Estate that Ron had declined to provide. Gaetane admitted that she deliberately did not return Ron’s phone calls or reply to his emails.

43Based on the record, Ron has not been involved in any settlement discussions as among the beneficiaries.

44The applicants also assert that Ron, a retired police officer and private security contractor, has no particular investment experience to manage a liquid estate that could, following the sale of the Residence, have a value of approximately $3.5 million. Ron asserts that he has the requisite experience, which he acquired over many years as a Staff Inspector and as an owner of a private investigation company. Ron submits that the Deceased’s investment portfolio is administered by Scotiabank, and it reports to him on activities and transactions in the portfolio. Ron also submits that he undertook to provide copies of the statements relating to this account to the applicants. Ron submits that these statements reflect an annual rate of return of approximately 9.52 per cent in the portfolio since the Deceased’s death.

45In a number of cases in which the court has declined to exercise its discretion to depart from the general rule set out in Re Bazos, the concern was the potential for conflict of interest or the appearance of conflict: see, for example, Sherbourne Estate (Re), 2005 CanLII 22148 (Ont. S.C.); Re Baker Estate, 2005 CanLII 42480 (Ont. S.C.); and Crestohl & BMO Trust Company, 2011 ONSC 2584. Apart from the possibility that Ron could be called as a lay witness who has helpful testimony, I am not persuaded that Ron is in a conflict of interest, or that there is an appearance of a conflict of interest.

46I find that this is an appropriate case in which to appoint Ron, the executor and trustee named in the July 11, 2019 Will, as ETDL, on terms. Several of the beneficiaries of that Will have consented to his appointment as ETDL. Rita, a beneficiary of fifty per cent of the residue of the Estate under that Will, does not oppose his appointment; she takes no position. Ron is a neutral party to the will challenge brought by the applicants. He has no vested interest in the outcome as he is not a beneficiary of that Will, or any of the other impugned wills. Therefore, there is no risk that he will control the Estate for his own benefit to the prejudice of the beneficiaries. I am satisfied that Ron has communicated with the beneficiaries regarding his administration of the Estate and has sought their input and cooperation. While there has been some disagreement between Ron and the applicants and Gaetane on certain aspects of his administration of the Estate, I find that there is no hostility between them. I am also satisfied that Ron is not in a conflict of interest at this time. Should Ron be called as a lay witness, if necessary, his continuing role as ETDL could be reassessed at that time. In the meantime, he is well-positioned to prepare the Residence for sale and to sell it for the benefit of all of the beneficiaries of the Estate.

3. Is the applicants’ proposed ETDL suitable and appropriate?

47The applicants propose the appointment of RSM Canada LLP as ETDL. RSM Canada LLP is not a suitable and appropriate candidate to be appointed ETDL because it is a limited partnership. Subject to specific exceptions for trust corporations (which RSM Canada LLP is not), an ETDL must be an individual who accepts personal responsibility and liability. The applicants could not provide the court with any authority that would permit a limited partnership to take on the role of ETDL.

48Additionally, the consent to act as executor and trustee signed by “RSM Canada Limited”, and dated February 6, 2022, is not an unqualified consent. It reads as follows: “RSM Canada Limited” hereby consents to act as Estate Trustee During Litigation, … subject to review of the exact wording of the Order.” There is no evidence that RSM Canada Limited was provided with a draft order to review. No draft order in respect of the appointment of RSM Canada Limited (or RSM Canada LLP) was provided to the court.

49The applicants submit, without any documentary evidence, that it is probable that a partner of RSM Canada LLP would agree to act as ETDL. They urge the court to grant them a short adjournment to give them more time to put forward a suitable candidate, such as one of the partners of RSM Canada LLP. I decline to grant this request. The applicants have had ample time to identify a suitable and appropriate candidate, who is legally authorized to take on the role of ETDL, and to obtain the proper consent of such a candidate.

50Time is of the essence in this matter. The Residence is vacant and must be sold without delay to maximize value and reduce non-recoverable expenses for the Estate. Absent an ETDL, it is likely that Scotiabank will continue to decline to pay expenses other than those absolutely necessary to maintain the Residence. Additional expenditures relating to the Residence, such as proper housekeeping and preparation of the Residence for listing and sale, could result in a higher sale price, which is for the benefit of the beneficiaries. Ron is very familiar with the Deceased’s assets and has been managing them since the Deceased’s death. If Ron is appointed ETDL, the administration can continue without delay.

51The evidentiary record shows that the costs of insuring the vacant Residence are considerable, and the value of the Residence could decrease if additional funds are not spent to properly maintain it until it is sold. The balance of convenience weighs in favour of appointing Ron, the executor and trustee named in the 2019 Wills, as ETDL.

52Neither RSM Canada Limited nor RSM Canada LLP is legally authorized to act as an ETDL, and even if they were, neither has unequivocally consented to do so. No individual at either entity has agreed to act as an ETDL. In Hansen v. Hurley, 1994 CarswellOnt 656 (C.J.), the court permitted the estate trustees named in the will to act, in part, because there was no other proposed ETDL before the court who had consented to act.

53The circumstances in Re Bazos can be distinguished from the case at bar. In Bazos, none of the parties consented to the appointment of the executor and trustee named in the will, a trust company, as ETDL. Further, a director of the said trust company had acted as a witness to the impugned will. The facts in the case at bar are also easily distinguished from the facts in Cabrera, where the court declined to permit the named executors and trustees of the impugned will, being the deceased’s spouse, a lawyer who advised the deceased, and a business associate of the deceased. In Cabrera, the court found that a neutral trustee was necessary because of the acrimony between the parties, the acrimony between the applicants and the deceased, the nature of the will challenges, and the inevitability that some of the estate trustees would need to testify.

54For these reasons, the applicants’ proposed ETDL, RSM Canada LLP, is not suitable or appropriate.

Disposition on Ron’s Motion

55On the totality of the evidence, I find that the appointment of an ETDL is necessary in this case, and Ron makes a strong case in support of his appointment. Ron has consented to act as ETDL. Accordingly, I appoint Ron as the ETDL, on terms, to act until the will challenge application brought by the applicants has been finally resolved or as otherwise ordered by the court. The terms of Ron’s appointment as ETDL are as follows:

• Following the sale of the Residence, the ETDL shall add the net proceeds to the Deceased’s portfolio invested with Scotiabank, to be managed by Scotiabank, and the ETDL shall supervise Scotiabank’s investment management of the portfolio pending the disposition of the applicants’ application.

• The compensation to which Ron shall be entitled for acting as ETDL shall be as agreed to by the ultimate beneficiaries of the Estate or as approved by the court.

• Ron shall be reimbursed for all expenses incurred by him on behalf of the Estate in his role as executor and trustee prior to his appointment as ETDL, and as ETDL, and all such reimbursements shall be subject to review on a passing of accounts.

The Applicants’ Motion

56In the applicants’ notice of motion, they seek a wide variety of relief in the form of the following: a) a direction on the issues to be determined in the application; b) the appointment of RSM Canada Limited, or some other professional estate trustee as the ETDL; and c) and an order giving directions on a number of matters relating to the administration of the Estate.

57Ron submits that he does not oppose the following orders:

a) an order directing the issues to be tried (apart from any action against Rita);

b) an order for the production of the Deceased’s testamentary papers;

c) an order for the preservation of the real and personal property of the Estate; and

d) an order setting a timetable for responding materials to the application, discovery and mediation.

The applicants have not submitted a draft order covering these matters on which there is consent.

58Rita and Dana take no position on the relief sought by the applicants.

59The applicants submit that the remaining issues in dispute on their motion are the following:

a) whether Ron or an unrelated, third-party professional ought to be appointed ETDL;

b) whether Ron ought to account for his dealings with the Estate to date, as required by an unrelated ETDL;

c) whether the production of documents and disclosure of information by third parties should be ordered;

d) whether an order should be made under r. 45 of the Rules of Civil Procedure for interim custody by the applicants of certain of the Deceased’s chattels pending the disposition of their application;

e) whether leave should be given to the applicants to cause a statement of claim to be issued in the name of the ETDL, on condition of all steps in such action being stayed until disposition of the application, to protect the Estate’s right of action against Rita from becoming statute-barred.

60I will address each of these issues in turn.

Appointment of ETDL

61The appointment of an ETDL was fully considered in the context of Ron’s motion. Ron shall be appointed ETDL, on terms.

Accounting by Ron

62Ron has been acting as an executor and trustee of the Estate since the Deceased’s death. He has held himself out to Scotiabank as such, and it has paid certain expenses at his request, qua executor and trustee. The beneficiaries of the Estate are entitled to an accounting from the executor and trustee at any point in the administration of the Estate. At this early stage in the administration, it would be premature to order Ron to bring an application to pass his accounts as executor and trustee, especially in light of the dispute, which involves a determination of the ultimate beneficiaries. That said, the potential beneficiaries have a right to know what assets of the Estate have been realized, what expenditures have been made, and how the assets are being invested.

63Ron submits that he has undertaken to keep proper accounts in a transparent fashion and to keep a record of his activities in a prudent and honest manner in his administration of the Estate. Accordingly, it is appropriate that Ron provide an informal accounting to the beneficiaries of the 2019 Will, including this information. Ron submits that he has been accounting for his administration of the Estate, so it should not be difficult for him to produce and deliver this accounting. Ron shall do so within 60 days of these reasons.

Production of Medical Records

64The applicants submit that Ron provided incomplete and inadequate medical records relating to the Deceased. They contend that they require production of additional medical records in order to pursue their will challenge with respect to the Deceased’s mental capacity. The applicant Jason Matthew De Sante deposed that he had witnessed erratic nocturnal behaviour and confusion on the part of the Deceased several years prior to 2019. The applicants shall be entitled to an order for the production of the Deceased’s medical records for the period commencing ten years prior to the Deceased’s death.

Custody Over Certain Chattels

65The applicants seek an order granting them custody over certain of the Deceased’s chattels that hold sentimental value to them. There are twelve such items listed in a letter, dated February 15, 2022, from Ron’s counsel to the beneficiaries of the July 11, 2019 Will. Ron reached out to those beneficiaries regarding the applicants’ request for custody, but he did not receive consent or a response from all of them. Ron takes no position regarding this relief.

66Having appointed Ron as ETDL, I direct him to deliver these chattels to the applicants to be held on trust by them for the beneficiaries of the Estate as determined in the application. The applicants shall provide a written acknowledgement and receipt in respect of the delivery of these chattels. The ETDL shall arrange to insure any such chattels of value, as he in his discretion considers appropriate, before they are delivered to the applicants. The ETDL shall not be liable for any damage to or loss of these chattels while they are being held in trust by the applicants.

A Statement of Claim Against Rita

67The applicants seek to bring an action to recover compensation for Rita’s use and occupation of the Residence prior to and following the Deceased’s death. They assert that this right vests in the personal representatives of the Estate. They seek an order permitting them to sue in the name of the personal representatives to prevent the claim from becoming statute-barred. The applicants rely on Stern v. Stern, 2003 CarswellOnt 102 (Ont. S.C.), at para. 40, to assert that such an order is justified where there is fraud or collusion of the trustee; impossibility or difficulty of the personal representatives to sue; or failure, excusable or otherwise, of the personal representatives to sue.

68The applicants assert that because the ETDL acts under the direction of the court, it would be inapposite for the court to direct him to engage in adversarial ligation with any of the parties. However, they submit that the court should nonetheless make an order that will preserve to the Estate the right of action that may be disposed of after the will challenge. Accordingly, the applicants argue that these special circumstances justify the exercise of the court’s discretion to permit the applicants to cause the statement of claim to be issued and served in the name of the ETDL. The applicants also seek a stay of all steps beyond the pleading until there is judgment in the application, at which time the duly authorized executors and trustees of the Estate could determine whether to pursue the claim.

69I decline to exercise my discretion to grant such relief. If Ron erred in his decision to permit Rita to occupy the Residence for a period of six months following the Deceased’s death, this issue could be raised by any person with a financial interest in the Estate on a passing of accounts by Ron. Regarding Rita’s use and occupation of the Residence prior to the Deceased’s death, in my view, the evidentiary record does not support the relief sought. There is no evidence before the court to demonstrate that Rita was anything other than a guest in the Residence, who had volunteered her time and services to care for Yolanda and the Deceased during their last years. There is no evidence of a tenancy agreement or that Rita ever paid rent, was expected to pay rent, or assumed any duties as a tenant.

Disposition on the Applicants’ Motion

70The applicants may submit to me a draft Order Giving Directions incorporating those matters in the applicants’ motion on which there is consent between the parties and those matters on which I have ruled in their favour in their motion. If the parties cannot agree on the form of this Order, they may arrange a case conference.

Costs

71Neither of the parties filed a Cost Outline in respect of their motion. The parties are strongly encouraged to agree on the matter of costs. If they cannot, any party seeking costs on these motions may make written submissions, not exceeding three pages (not including a Costs Outline and offers to settle, if any) by June 8, 2022. Responding submissions shall follow by June 15, 2022. Reply submissions may only be made with leave. If costs submissions are not made in accordance with this timetable, the matter of costs will be considered to have been agreed between the parties.

Dietrich J.