Court File and Parties

COURT FILE NO.: CV-21-77025 DATE: 2022-07-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Verna Shirley Letourneau, Applicant AND: Arnold Norman Summers as Estate Trustee in the Estate of Bernold Meteore Norman Leroy Summers, Respondent

BEFORE: Justice I.R. Smith

COUNSEL: Matthew J. Lambert, for the Applicant Gerry Smits, for the Respondent

HEARD: June 23, 2022, by video-conference

ENDORSEMENT

Introduction

[1] The applicant is the sole beneficiary of the estate of Bernold Summers, her late son. Another of her sons, the respondent Arnold Summers (the “respondent”), is the trustee for the estate. The applicant now seeks to have the respondent removed as trustee, among other requests for relief. In my view, as described below, the application should be allowed.

Facts

[2] The applicant is 82 years old. When her son Bernold died on December 26, 2020, he was without a will and without spouse or children. Pursuant to the Succession Law Reform Act, R.S.O. 1990, c. S-26, s. 47(3), the applicant is the only person entitled to share in his estate.

[3] Because of her age and some health difficulties, the applicant agreed that the respondent should act as estate trustee. However, almost immediately, problems developed. In a nutshell, the respondent and counsel retained by him for the administration of the estate have failed to communicate with the applicant in any meaningful way. Her repeated requests that the estate’s chief asset, Bernold’s house in Jerseyville, Ontario (the “house”), be liquidated were met with silence, even after she engaged counsel to communicate with counsel for the respondent. Moreover, no list of assets and liabilities of the estate was provided to the applicant, and no updates of any kind have been forthcoming, despite clear requests for same.

[4] The respondent acknowledges that he and his lawyer (not Mr. Smits) were unresponsive and that the house was not listed for sale as promptly as it should have been. The respondent explains that there were several reasons for these failures, but chief among them was that he hoped to be able to buy the house for himself.

[5] The respondent says that he paid off debts associated with the house, including overdue municipal taxes, a mortgage, and unpaid credit card debt that had resulted in a writ of execution. He also says that he paid for home insurance and for certain improvements to the property, including a new roof. I note that the record contains no documentary corroboration for the respondent’s claims in this regard. The applicant says that she was not consulted about any of these expenditures or the respondent’s handling of them. She does not know whether the respondent made these payments himself or if he used estate funds to do so. She has no accounting either way.

[6] In any case, eventually the respondent concluded that he could not afford to purchase the house and it was listed for sale – albeit long after the applicant had requested that it be listed and, tellingly, only after this application had been launched.

[7] The respondent says that in March of 2022, he caused the estate to enter into an agreement of purchase and sale (“APS”) for the house, which agreement is set to close on August 1, 2022. While the applicant does not object to that transaction (I observe here that the purchase price is higher than the opinion of value that the applicant received from a realtor on May 21, 2021), she does note that the listing agreement and APS were both executed without consultation with her and without her knowledge.

[8] Furthermore, instead of selling the house as and when the applicant requested, the respondent rented the house to a friend without consulting with the applicant. The applicant deposes that she had earlier told the respondent that she did not want the house rented, she wanted it sold immediately. There is no documentary evidence in the record or otherwise provided to the applicant that rent has been collected from the tenant as the respondent claims, and only the respondent’s assurance that the tenant will be gone by the time set for the closing of the house deal in August, even though the respondent has said that the rental agreement expires on an unspecified date in August. The applicant also notes that she was not consulted on what the monthly rent payment should be and that she has no idea whether the respondent took steps to ensure that the rent he charged represented fair market value for the rental of the house.

[9] The respondent has also cleared the deceased’s possessions from the house and stored them without accounting to the applicant for any of them.

[10] The applicant deposes that she would never have agreed to the respondent’s appointment as estate trustee if she had known that the estate would be handled as it has. She says that it appears that the respondent has acted in his own interests, not those of the estate, and that she no longer trusts the respondent to administer the estate properly. Counsel for the respondent says that any conflict that might have existed because the respondent hoped to purchase the house has dissipated, although he acknowledges that he now takes the position that he is a creditor of the estate. He agrees that an accounting should be provided.

[11] The applicant proposes that another of her sons, Joseph Letourneau (the respondent’s half-brother), be appointed estate trustee in the respondent’s place. Mr. Letourneau has filed an affidavit and indicated that he is willing to take on this role.

Analysis

[12] I note that each party disputes assertions of fact contained in the affidavits of the other. It is not necessary to resolve each of those debates. On the crucial points, which have been set out above, the parties are largely agreed. To the extent that they are not agreed, I accept the evidence provided by the applicant. It is corroborated in some significant respects by the respondent, but more important, it is the respondent who controls both the estate assets and the records in this matter and, apart from a small handful of documents, he has not supported his version of events with any documentary corroboration.

[13] The applicant has been requesting an accounting and the sale of the house since early 2021. She has received no response on the former and has not yet seen the realization of the latter, the APS being entered only after she sought to have the respondent removed as estate trustee.

[14] Given that the parties are agreed that the estate is not a complicated one, it should have been a straightforward matter to provide the applicant with a list of the estate’s assets and liabilities. It should also have been a straightforward matter to provide documentary evidence of same and of the respondent’s efforts in pursuit of the administration of the estate. I am unable to understand why a simple accounting has not been provided to the applicant, especially since this application was first threatened in July of 2021.

[15] The principles to be considered when the court is asked to remove an estate trustee were recently discussed in Meuse v. Taylor, 2022 ONSC 1436, at paras. 11 – 15, and have been summarized as follows:

(1) the court will not lightly interfere with the testator’s choice of trustee;

(2) clear evidence is required that removal of the trustee is necessary;

(3) the court’s main consideration is the welfare of the beneficiaries; and

(4) the estate trustee’s acts, or omissions must be of such a nature as to endanger the administration of the trust.

[16] In this case, the deceased did not choose the respondent as the estate trustee because the deceased died without a will. The respondent was chosen to take on the role of estate trustee by his family, including the applicant and Mr. Letourneau, both of whom now hope to have the respondent removed. In other words, the deceased did not make a choice of trustee which deserves the respect of the court. Instead, the choice was made by people who are alive to express their opinions and who wish to have the respondent removed. Those people include the sole beneficiary of the estate, whose interests are paramount.

[17] In this case there is evidence that the respondent acted in his own self-interest, that he acted contrary to the wishes of the applicant, that he rented the property without consulting the applicant, that he has failed to provide any kind of accounting for the assets and liabilities of the estate, and that he listed the estate’s main asset for sale – and executed an agreement of purchase and sale respecting it – without consulting the applicant. And, as I have said, the respondent now claims to be a creditor of the estate.

[18] In my view, considering the whole of the evidence, it is necessary to remove the respondent as estate trustee. The estate’s sole beneficiary has been kept ignorant of important facts and has had her wishes ignored by a trustee who has pursued his own interests in the execution of his duties as trustee. Now, long after this application was launched, the applicant remains largely uninformed and has no confidence in the respondent. This is not an example of the proper execution of a trust. Removal is necessary to ensure that the estate is not endangered.

Order

[19] Accordingly, the application is allowed, and an order will go providing as follows:

(i) that the respondent be removed as estate trustee;

(ii) that Joseph Letourneau be appointed estate trustee;

(iii) that a certificate of appointment of estate trustee without a will be issued to Joseph Letourneau, subject to the filing of the necessary supporting application, which application is to be expedited by the Court Registrar;

(iv) that the original certificate of appointment be returned to the court pursuant to Rule 75.05(1) of the Rules of Civil Procedure;

(v) that any and all persons having documents, records or information, which are in their control or possession relating to the assets and administration of the estate, shall deliver same to the estate trustee at his or her request;

(vi) that the estate trustee will not be responsible for any act or omission prior to the date of his or her appointment;

(vii) that the estate trustee may move before me for such further directions as are advisable or necessary with respect to the due administration of the estate, including with respect to compensation, if any, to be paid for the respondent’s work to date as estate trustee;

(viii) that the respondent provide a full accounting with respect to his administration of the estate, including his management of the property municipally known as 143 Sunnyridge Road in Jerseyville, Ontario, withing 14 days of the release of these reasons.

Costs

[20] If the parties are unable to agree on the costs of this application, the applicant may serve and file written submissions respecting costs within ten days of the release of these reasons. The respondent may serve and file written submissions respecting costs within seven days of the service of the applicant’s submissions. The applicant’s reply, if any, to be served and filed within three days of receipt of respondent’s submissions.

I.R. Smith, J.

DATE: July 22, 2022