COURT FILE NO.: 27755/18

DATE: 2022-01-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROLAND PINARD in his personal capacity and also as ESTATE TRUSTEE WITH A WILL IN THE ESTATE OF JEAN PINARD also known as JEAN NELLIE PINARD

Applicant

– and –

YVONNE GILCHRIST and EDWARD JONES

Respondents

Brian L. DeLorenzi, for the Applicant

Paul Johnson, for the Respondent, Yvonne Gilchrist

Krystyne Rusek, for the Respondent, Edwards Jones

HEARD: September 9, 2021

RASAIAH J.

reasons on motion

OVERVIEW

[1] The moving party, respondent, Yvonne Gilchrist (“Gilchrist”), filed a motion for an order for particularization of assets and passing of accounts by the Estate Trustee.

[2] Gilchrist is a beneficiary in the Last Will and Testament of her late mother, Ms. Jean Pinard (“deceased”), who died on December 13, 2017. A true copy of the deceased’s Last Will and Testament was attached as Exhibit “A” to Gilchrist’s affidavit sworn July 26, 2019.

[3] The responding parties are Roland Pinard (“Pinard”) in his personal capacity, and also as Estate Trustee with a will, and Edward Jones (“Edward Jones”) (which holds a joint account between Gilchirst and the deceased, the “Edward Jones account”). Edward Jones did not participate on this motion.

[4] Gilchrist filed a confirmation indicating that the hearing was proceeding on all issues and was relying on: the Motion Record dated October 1, 2019, Affidavit of Roland Pinard sworn February 16, 2021, Supplementary Motion Record of the Moving Party dated April 14, 2021, Moving Parties' Factum dated June 9, 2021, Responding Parties' Factum dated June 3, 2021, and Reply Factum of Moving Party dated July 21, 2021.

[5] Gilchrist asserts that Pinard has not provided an accounting to the beneficiaries of the estate, and that the extent of information that he has provided to date is insufficient. That information is contained within Pinard’s affidavit, sworn February 16, 2021.

[6] The issues to be determined on this Motion are whether Pinard, as the Estate Trustee, has an obligation to and should be ordered to pass accounts and provide the information that is being requested.

RELIEF REQUESTED BY GILCHRIST

[7] Gilchrist’s notice of motion seeks:

(a) An Order requiring Mr. Pinard to particularize the assets that Mr. Pinard determined formed part of the Estate, as well as those assets that Mr. Pinard determined should not be identified as Estate assets, and to pass his accounts as Executor and Estate Trustee;

(b) The costs of this Motion from Mr. Pinard in his personal capacity or, in the alternative, from the Estate, on a full indemnity basis or as otherwise deemed appropriate by this Honourable Court; and

(c) Such further and other relief as counsel may advise and this Honourable Court considers just and appropriate having regard to all the circumstances.

POSITIONS

Gilchrist’s Position on the Motion

[8] Pinard is under a misapprehension that he is not required to account to the beneficiaries of the Estate, or that if he is required to account, that the information he has provided to date is sufficient to satisfy his legal obligations.

[9] Gilchrist states she has cause for concern about the propriety of Pinard’s actions as Estate Trustee. Gilchrist is unable to satisfy herself that Pinard fulfilled his obligations as Estate Trustee and did not wrongfully distribute Estate funds/assets when he provided funds to beneficiaries. She asserts that it is difficult to understand why, if Pinard conducted himself appropriately as he claims, that he is refusing to provide even an informal accounting to Gilchrist to bring this matter to a close.

[10] In application proceedings before the court, Gilchrist is seeking determinations/relief with respect to the administration of the Estate, making allegations including but not limited to impropriety and whether Pinard has violated his obligation to treat her fairly and in the same manner he treated the other beneficiaries of the Estate (relying on Watkins v. Watkins Estate (Trustee of), 2001 CarswellOnt 1789, at para 34), and whether Pinard has failed to fulfill his obligations as a fiduciary.

[11] Gilchrist relies on the Ontario Court of Appeal in Sanford v. Porter, [1889] O.J. No. 43 (Ont. C.A.) which she submits established the following principles,

(a) “The beneficiaries of the estate are entitled to all the documentation the Estate Trustee has”. (Sawdon Estate v. Watch Tower Bible & Tract Society of Canada, 2010 ONSC 4066, at para 23).

(b) "The duty of a trustee or other accounting party is to have his accounts always ready, to afford all reasonable facilities for inspection and examination, and to give full information whenever required." (Advocate General Insurance Co. of Canada (Provisional Liquidator of) v. Peter Rocca Insurance Brokers Inc., [1996] O.J. No. 121, at para 22).

(c) “any beneficiary […] may call upon the trustee […] for accurate information as to the state of the trust at any time.” (Lloyd v. Myers Estate, 2009 CarswellOnt 8259, at para 9).

[12] Gilchrist relies on and refers to law from Lloyd, para. 4 that provides:

It has been clearly established since the early 19th century that a trustee must be ready at all times to give an accounting of the estate. Further, in Campbell v. Hogg (1930), 1930 330 (UK JCPC), 39 O.W.N. 85 (Ontario P.C.), at 86 -87, Lord Blanesburgh of the Privy Council said that "accounts are to contain a true and perfect inventory of the whole property in question, and are to include normally: (1) an account showing of what the original estate consisted; (2) an account of all moneys received; (3) and account of all money remaining in hand.

Pinard’s Response Position on the Motion

[13] In Munro v. Thomas, 2021 ONSC 3320, Pinard submits that Gibson, J. noted that there are reasonable limits to the extent of an Order that should be made pursuant to r. 74.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Court indicated that such an Order is discretionary and should not be made an instrument of potential abuse by parties, arising from their hostility, suspicion or paranoia.

[14] Gilchrist has made an overbroad request for documentation which does not relate to her specific gift as set out in the 2017 Will. It is akin to a fishing expedition arising from the hostility, suspicion or paranoia of Gilchrist which followed the Estate having taken the position that the Edward Jones account is subject to inclusion as an estate asset required to fulfill the testamentary request of the deceased pursuant to the 2017 Will, relying on Re Battery Plus Inc., 31 C.B.R. (4th) 196 at para 21.

[15] To order Pinard to complete a formal accounting of the Estate under the circumstances is not in keeping with the discretionary nature of orders under r. 74.15 and/or what is required per r. 74.17, namely a statement of assets at the date of death; an account of all money received; and an account of all money disbursed, including payments for trustee’s compensation, and payments under court order.

[16] Such an order is discretionary and should not be made an instrument of potential abuse of parties arising from the hostility, suspicion or paranoia of another party. The overall welfare of the beneficiaries, not just the right of individual beneficiaries must be taken into account before a court orders disclosure: Re Londonderry’s Settlement, (1964), [1965] Ch. 918, [1964] 3 All ER 855 (Eng CA).

[17] A beneficiary, simply by asserting a claim, does not have an entitlement as of right to disclosure from a trustee, rather, the strength of the claim must be assessed and balanced against competing interests such as personal or commercial confidentiality. MacPherson v. Macpherson, (2005), 2005 BCSC 207, 46 C.C.P.B. 38, 15 R.F.L. (6th) 361 (B.C.S.C.) at para. 18

[18] Estate trustees may withhold documents upon which they base their discretionary decisions.

[19] There is no requirement under the Rules for an executor to account for those assets falling outside of the estate that were passed inter vivos, for tax planning, estate planning, or other purposes: Munro, at para. 21.

[20] There is question as to whether a complete formal accounting can be done when the determination of a significant asset remains in dispute.

[21] There is question as to who is to pay for such an accounting if there are insufficient assets in the estate.

[22] Courts have chosen a more purposive approach, emphasizing a case-by-case discretionary intervention by the Court.

[23] Pinard requests that the within motion brought by Gilchrist be dismissed with costs payable to the Estate.

Gilchrist’s Reply Position

[24] Gilchrist challenges the position of Pinard, namely that:

a. Pinard has a clear duty to estate beneficiaries to pass accounts to prove that he has administered the Estate prudently and honestly and must be in a position, at all times, to prove that he administered the trust prudently and honestly: this is not a basis on which he can rely to avoid same;

b. Even if Pinard is correct in asserting a beneficiary of a specific gift is only entitled to information that is specific to that legacy, this principle does not apply in this case because Gilchrist’s bequest is a demonstrative legacy;

c. Pinard has not adduced any evidence whatsoever to liken Gilchrist's motion to a "fishing expedition" akin to Battery Plus Inc., Re;

d. Pinard, as an estate trustee, has a duty to accurately, openly, and fully report information about the Estate. Pinard's duty to pass accounts is independent and this obligation existed prior to these adversarial proceedings; and

e. A trustee must disclose those documents in their possession that are relevant to the issues in an action where their bona fides are being impugned, whether or not they are trust documents. Gilchrist alleges that Pinard's decision to withhold their entitlement is for the improper purpose of isolating and alienating her from her family, and to pressure her into capitulating ownership of the remaining joint account.

SUMMARY OF FACTS

[25] The deceased died on December 13, 2017 at the age of 81.

[26] The deceased had executed a Last Will and Testament dated November 18, 2017 (“the 2017 Will”).

[27] The 2017 Will was probated, and Letters of Administration were granted on January 16, 2018.

[28] The 2017 Will appointed Pinard as Estate Trustee.

[29] The deceased had four children with Roger Pinard, who predeceased her, namely, Pinard, Gilchrist, Linda Fernette, and Jo-Anne Blasek (who is deceased).

[30] Following Roger Pinard’s death in April 2009, Pinard and his wife moved to Elliot Lake to be closer to the deceased and provide care for her.

[31] The history includes that the deceased retained lawyer, Mr. Roland Aube, to prepare a Last Will and Testament which was executed on March 13, 2013 (the “2013 Will”).

[32] In November of 2017 the deceased re-attended with Mr. Aube to provide instructions resulting in the 2017 Will, which made certain changes to the 2013 Will, including replacing Gilchrist as Executrix with Pinard.

[33] The deceased executed the 2017 will on November 18, 2017.

[34] The history also includes that the deceased held an investment account with Edward Jones, namely the Edward Jones account #202295673(1-6). This account was held jointly with Gilchrist, however, all the money in the account was that of the deceased.

[35] In November 2017, the deceased contacted the Edward Jones Sudbury office to make changes to the account. In addition, on or about November 14, 2017, after executing the 2017 Will, the deceased attended at the Elliot Lake office of Edward Jones at which time she obtained and signed a consent form to remove Gilchrist from the joint account.

[36] At or around the same time, the deceased took steps to change the beneficiary designation of an insurance policy from her grandchildren to her Estate.

[37] The insurance policy beneficiary change was processed; however, the joint account change was not completed as Edward Jones required Gilchrist to sign a consent form to process the change.

The 2017 Will

[38] Pursuant to subparagraph III(h) of the 2017 Will, the deceased directed her Estate Trustee to provide monetary gifts totalling $130,000.00 as follows:

(h) I DIRECT my trustees to remit the following gifts from various investment accounts I may have either at TD Canada Trust or at Edward Jones, at the time of my death as follows:

i. $5,000.00 to my daughter, Linda Frenette of Hanmer, ON;

i $5,000.00 to my friend Al Labine of Elliot Lake, ON;

ii. $10,000.00 to my grandson, Brent Blaseg of Ottawa, ON;

iii. $10,000.00 to my granddaughter, Kelsey Gilchrist of Sudbury, ON;

iv. $50,000.00 to my daughter, Yvonne Gilchrist of Sudbury, ON;

v. $10,000.00 to my daughter-in-law, Cindy Pinard of Elliot Lake, ON;

vi. $25,000.00 to my granddaughter, Sherry Lynn Gilchrist of Sudbury, ON;

vii. $15,000.00 to my granddaughter, Celina Jean Luoma of Sudbury, ON.

[39] The 2017 Will contains a clause at paragraph IV revoking bequests that are challenged by the beneficiaries of same.

[40] The 2017 Will left the residue of the estate to Pinard.

Edward Jones Accounts

[41] At the date of the deceased’s death, the record sets out based on information provided by Pinard that the deceased held the following accounts at Edward Jones:

(a) Individual Account #20216131(1-8): in her name alone; balance as at December 13, 2017 was $3.74;

(b) Tax-Free Savings Account #50229249(1-3): in her name alone with a balance as of December 13, 2017 of $54,181.18 naming Pinard as beneficiary; contingent beneficiary, Murray R. Pinard;

(c) Joint Account with rights of survivorship #202295673(1-6): in her name and Gilchrist’s name with a balance as of December 13, 2017 of $125,466.24;

(d) Off-book account #40256630(1-6) in her name alone: Manulife Insured GIC, GIC #3140475 purchased in her name alone. Purchase amount was $5,000; interest is paid at 1.550% p.a.; maturity date is September 25, 2020; daily interest account balance is $5,176.08 as of February 28, 2018. Beneficiary is Linda Frenette; Contingent Beneficiary is Gilchrist. This GIC was sold to the deceased by Edward Jones but is held at Manulife; and,

(e) Manulife Whole Life Policy #4184794 held in her name alone (policy was purchased by her in 1988 from Manulife; Edward Jones later assumed role of servicing agent). $41,454 was paid by Manulife to the designated beneficiary on the policy, namely the Estate, in trust to Mr. Aubé, on or about January 12, 2018.

[42] The deceased made a handwritten notation on the last statement received prior to her death for the Edward Jones account, #202956731, held jointly by the deceased and Gilchrist. Pinard states the notation is that $50,000.00 be transferred to Gilchrist, with the balance left to be distributed as the deceased wanted pursuant to the 2017 Will. The notation is written as follows:

TAX FREE ACCOUNT 59229249} BUCK

Account Number 202 956 731} YVONNE $50,000.00 J.P.

50,000.00 is to be transferred to her acc. Or whatever she wants done with it.

The balance of acc 202956-731 is to Be left There for my son Roland Pinard he will give the share that I want to the following

TD Canada Trust

[43] At the time of the deceased’s death, she held one investment account at TD Canada Trust, namely Account No. 9151346, which was specifically mentioned in subparagraph III(d) of the deceased’s Will. Pinard was the named beneficiary on that account.

[44] There were no other investment accounts at TD Canada Trust at the time of the deceased’s death.

[45] The deceased held a chequing account at TD Canada Trust at the time of her death. Pinard was a joint tenant on the chequing account, however, Pinard did not receive the account through survivorship, rather the said account has become the estate account, out of which Pinard has administered the Estate and paid taxes on the Edward Jones account.

Estate Distributions

[46] Pinard states he has made payments out of his personal inheritance to fulfill certain of the deceased’s specific gifts outlined in subparagraph III(h) of the 2017 Will while awaiting a determination of the status of the Edward Jones account 202956731. Pinard has made the following full and unabated payments:

(a) to Linda Frenette - $5,000.00;

(b) to Al Lebine - $5,000.00;

(c) to Brent Blaseg - $10,000.00;

(d) to Cindy Pinard - $10,000.00.

[47] Pinard asserts that Gilchrist has refused to relinquish the Edward Jones account #202956731 to the Estate. Positions have been raised with respect to the deceased’s desire and directions to change the ownership with respect to this account by Gilchrist and Pinard.

[48] The remainder of the specific monetary-gift beneficiaries noted under subparagraph III(h) of the 2017 Will are Gilchrist, her daughters, and her granddaughter. Without the balance of the funds from the Edward Jones account #202956731, Pinard states that there are insufficient estate monies to make the specific monetary gifts to those individuals noted in subparagraph III(h).

[49] Pinard and the Estate’s lawyer, Mr. Aube, have provided a letter to Gilchrist that at the date of death of the deceased, there were no other investment accounts at TD Bank or Edward Jones, except for the Edward Jones account described in paragraph III(h) of the 2017 Will.

ISSUES

[50] The motion raises the following questions in my view:

a. What are beneficiaries entitled to by way of documents/and accounting (r. 74.1, r. 74.16 and r. 74.17); what is an Estate Trustee required to do/produce?

b. Is the relief requested discretionary?

c. What are the factors that the court needs to consider in assessing that request?

d. Is it a case by case determination and with what approach?

e. Is the request in question overbroad?

f. Is the request in question akin to a fishing expedition and what evidence if any is there of same?

g. Is any portion of the request in question related to an asset falling outside of the estate ( i.e. inter vivos gift) and if so, does this make a difference in this case?

h. Does it matter that there is a dispute over an asset to justify not ordering an accounting?

i. Is the type of the gift a factor?

j. What if any consideration should be given to the cost of an accounting?

ANALYSIS

What are beneficiaries entitled to by way of documents/and accounting (r. 74.1, r. 74.16 and r. 74.17); what is an Estate Trustee required to do/produce; application of discretion; and approach

[51] Rules 74.15 (d), (e), (h) and (i) of the Rules provide that any person who appears to have a financial interest in an estate may move for an order requiring an estate trustee to file with the court a statement of the nature and value, at the date of death, of each of the assets of the estate to be administered by an estate trustee; after receiving same, for an order for further particulars by supplementary affidavit or otherwise as the court directs, and an order requiring the estate trustee to pass accounts [emphasis mine]; and an order providing for any other matter as the court directs.

[52] There is no question that Gilchrist has a prima facie financial interest in the Estate by the terms of the 2017 Will. Pinard is the Estate Trustee. The rule clearly addresses assets of the estate to be administered by an estate trustee.

[53] To date, Pinard states he has provided the information as set out above. In the record, there are: a letter dated March 1, 2018 outlining the particulars as set out above with respect to the Edward Jones holdings sent to Mr. Aube by Edward Jones with a statement attached for the period November 1, 2017 to November 30, 2017; a TD Mutual Funds investment account statement for the period October 1, 2017 to December 31, 2017; and a letter from Mr. Aube dated January 21, 2021 to Pinard’s counsel advising that “there are no other investment accounts at the Toronto Dominion Bank or Edward Jones, at the date of death, except for the Edward Jones account described in paragraph III (h) of Mrs. Pinard’s Will. Any gifts paid to some of the beneficiaries listed in paragraph III (h) were made by Mr. Pinard personally from his own funds.” When I look at these documents and the words used to provide the information, I do not find a clear response as to what Pinard considers to be the assets of this Estate to be administered or a clear clarification or indication that there are no other accounts and/or property that may be considered estate assets or are being considered same in response to Gilchrist’s pre-motion inquiry.

[54] It is not for this court on a motion such as this to determine the application of the “contesting ramifications” clause in the 2017 Will and its ramifications given the unresolved issues concerning the Edward Jones account. In addition, it is for another day, to determine if the Edward Jones account is an asset outside of the estate, considering that the asset was jointly held with a surviving adult child and the law concerning the presumption of resulting trust.

[55] I am satisfied that a case by case approach applies and find that there is a compelling argument to be made on the specific facts of this case to direct the further provision of information and to order the accounting.

[56] It is within the court’s discretion to order the relief requested: r. 74.15(1).

[57] In respect of the accounting, if ordered, Pinard would have to prepare accounts in proper format, file an affidavit verifying the estate accounts, and include a copy of his appointment. If compensation is being sought, the basis of same is to be provided, and the same applies for costs.

[58] In this case, in addition to Pinard’s assertions of potential insufficient assets in the Estate, Gilchrist is challenging the handling of the estate accounts by Pinard, calling into question the actions of Pinard as an estate trustee.

[59] In Cahill v. Cahill, 2016 ONCA 962, 26 E.T.R. (4th) 2017 (“Cahill (ONCA)”), at paras. 25-26 stated the following: (V- 43 T-5)

25 In The Law of Trusts 3d ed…. at pp. 154-55 Gillese J.A. describes the nature of the trustee’s role:

Trusteeship is an extremely onerous position. Trustees are subject to the specific duties created by the trust instrument and by legislation. In addition, they have a great many duties placed upon them by equity.

An understanding of the common law duties imposed upon trustees has as its starting point the fact that a trustee is a fiduciary. The trustee exists to administer the property on behalf of the beneficiary.

Because of the dependency relationship and the fact that the trustee controls the beneficiary’s property, the trustee is held to the most exacting standards of all fiduciaries.

26 Justice Gillese goes on to observe that a breach of trust occurs “whenever a trustee fails to fulfill his or her obligations with respect to the administration of the trust”, and liability arises whether the breach is innocent, negligent or fraudulent. Liability “exists even if the loss would have occurred without the breach. In general, liability is imposed not to punish the trustees but to restore the beneficiaries to the position they would have been in had the breach not occurred”: p.178.

[60] In D.W.M. Waters, M.R. Gillen, and L.D. Smith, eds. Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), at p. 978, it states the following:

As Canadian common law now stands, no distinction can be drawn between the lay trustee and the professional trustee. Both are required to act as a prudent person, or, as he is sometimes called, the prudent businessperson, would act … the professional trustee is subject to no higher standard of care.

[61] In Zimmerman v. McMichael Estate, 2010 ONSC 2947 at para. 31, the court wrote: A trustee has an obligation to keep proper accounts. A trustee must keep a complete record of his/her activities and be in a position at all times to prove that he/she administered the trust prudently and honestly. He/she must have the accounts ready and give full information whenever required: Carmen S. Thériault, Widdifield on Executors and Trustees, 6th ed. (Scarborough, Ont.: Carswell, 2002) at p. 13-1; Waters' Law of Trusts in Canada, above, at p. 1063; Sandford v. Porter, [1889] O.J. No. 43, 16 O.A.R. 565 (C.A.).

Is the request in question overbroad?

[62] Gilchrist is essentially asking for a list of estate assets and the assets belonging to the deceased that Pinard has determined are not estate assets, and an accounting with respect to estate assets.

[63] It is not a fishing expedition or overbroad, in my view, when the specific bequests have not been paid out by admission, and in light of Pinard’s assertion that there may be insufficient assets in the Estate if the Edward Jones account is not included and/or determined to be an asset of the Estate.

[64] I accept that these specific factual circumstances form the basis of Gilchrist’s request and that Pinard has failed to provide evidence that the request arises from hostility, suspicion, or paranoia of Gilchrist. Prior to the motion, Gilchrist requested an accounting by provision of documents with respect to the TD account being used as the Estate account, a confirmation that there are no other Estate assets as set out in the affidavit and a list of assets Pinard determined did not form part of the Estate.

[65] In Munro, I do not interpret the court to be setting a blanket principle that an estate trustee is not to provide information for assets that fall outside of the estate, that it depends on legal issues that could lead to testamentary challenges concerning the property, such as testator’s capacity throughout all relevant times, or jointly held property that triggers presumption of resulting trusts, or not purely gratuitous transfers. As such, if such issues are present, there may be obligations on the estate trustee to provide information on the such assets. Underlying this case is a question posed by Gilchrist that she will be asking the court to determine, namely, if Pinard treated her fairly and/or breached any of his obligations and there is an assertion of potential insufficient assets in the Estate. Her claim is not a bare or bald assertion. Pinard’s actions/discretion/fiduciary duties are in question, so I find that the “zone of privacy” or “insulation” he claims that may apply, is not applicable. In addition, it was difficult to appreciate this argument without particulars from Pinard and in light of the fact, looking at what he has disclosed to date, that he has already included some assets that may “fall outside of the estate”, namely direct beneficiary designated assets.

[66] I agree that there should be reasonable limits. In this case, the requests of Gilchrist are not outside of reasonableness given the issues, based on what she is looking for which I have set out above. She is asking at this date for a particularized list, aside from the accounting.

Are there sufficient or insufficient investment accounts to satisfy the specific bequests?

[67] I am not persuaded that the argument that there may be insufficient assets to satisfy the specific bequests is a factor to refuse the request. See my findings and rulings on the issue of “costs as a factor” set out below, including but not limited to the complexity of the Estate and the cost of preparation of accounts in this specific case. In addition, clarification in my view is outstanding as to what are the assets Pinard determined are subject to administration and which are not, considering the said assertion made. In addition, if there are insufficient assets, insolvency and/or abatement issues that may arise were not adequately addressed in evidence against what could or should be or should have been the responsibility of the Estate Trustee in this case to support denial of the request to provide the information/account balanced against the welfare of beneficiaries, which includes consideration of the fact that Pinard has already paid out a number of the beneficiaries to date in full. Without a complete picture of the Estate assets and given undetermined resolution of the Edward Jones account issue, Pinard in my view has made unsupported assertions as to alleged jeopardy to welfare of other beneficiaries, which at this date, based on the foregoing, I find he has in this case.

Does it matter that there is a dispute over an asset to justify not ordering an accounting?

[68] In my view, the dispute regarding the Edward Jones account is not a factor to consider for refusing the relief requested. This asset is accessible for purposes of accounting. It has been frozen. I fail to see how performing an accounting on a frozen account would be taxing or expensive. It seems to me that it would be a matter of obtaining copies of the statements if they are not already within Pinard’s possession. Gilchrist is in a position to cooperate with that request. Further, it is not uncommon to have disputes in estate administration cases. I fail to see how the simple fact of there being a dispute would excuse an accounting, especially when the trustee himself is suggesting a position that it is or should be an asset of the Estate. In terms of this argument forming the basis of costs to the Estate, see my rulings and findings on that issue below.

Is the type of the gift a factor?

[69] In this case, the 2017 Will provides for specific monetary gifts to be made to named individuals out of various investment accounts the deceased had at the time of her death and includes general discretion provisions applying to Pinard’s administration.

[70] I am not persuaded in this case, that the discretion and type of gift are factors, given the issues in this case and the aforementioned assertions of Pinard. Gilchrist is prima facie a beneficiary and has not been paid her financial interest when others have been unabated (albeit he states from his own assets); and Pinard has indicated that there may be insufficient assets to meet the bequest without providing a firm clear response to what he considered are all of the assets of the estate.

What if any consideration should be given to the cost of an accounting?

[71] Generally the cost of passing accounts is borne by an estate but courts may impose them personally on estate trustees, or deduct them from the estate trustee’s compensation for inappropriate behaviour, and in some cases, beneficiaries who unnecessarily or unreasonably challenge or object may bear the costs. I further note that the cost to pass accounts can vary based on the size and complexity of the estate, the quality of the estate trustee’s records, how long the estate administration has been ongoing and any disputes about the expenses. Many accounts for simple organized estates ought to be able to be prepared and passed quickly and cost-effectively.

[72] In this case, I find that the Pinard has filed insufficient evidence to decide that costs are a valid concern in the context of any of the relief requested (provision of a list and an accounting). I am not persuaded on the record of complexity being an issue and/or that this is a complicated unorganized Estate. For these reasons, I am not persuaded that the cost of the work that would be involved with respect to the relief requested is an issue that affects whether the order should be made for these reasons.

CONCLUSUION

[73] Based on the above, the motion is granted.

[74] Pinard shall particularize the assets that Pinard has determined formed part of the Estate, as well as those assets that Pinard determined should not be identified as Estate assets setting out the nature of the asset, name of institution and account number if applicable, name(s) listed as owner of the asset, other relevant information such as directly named beneficiaries if applicable, and the value of the asset; and to pass his accounts as Executor and Estate Trustee.

[75] The issue of costs of this motion may be addressed in writing if the parties are not able to resolve same. Outside of bills of costs and/or offers to settle, submissions are limited to 5 pages or less, the moving party to submit same within 15 days and the responding party within 15 days thereafter.

Rasaiah J.

Released: January 19, 2022