OSHAWA COURT FILE NO.: 22-190-ES

DATE: 20220803

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF JADWIGA DELL

RE: Jim O’Connor, as Estate Trustee of the Estate of Jadwiga Dell, Deborah Murray and Joyce O’Connor, as Disability Trustees of the Trust set up for Nicole Dell pursuant to the Last Will of Jadwiga Dell, Applicants

AND:

Angela Dell, Estate of Michael Dell, and The Office of the Children’s Lawyer, for the minor Nicholas Dell, Respondents

BEFORE: The Honourable Madam Justice S.E. Fraser

COUNSEL: Lisa M. Fenech, Counsel for the Applicants

Glenn L. Elliott, Counsel for the Respondent, Angela Dell

Kiran Arora, Counsel for The Office of the Children’s Lawyer, for the minor Respondent, Nicholas Dell

HEARD: June 16, 2022

ENDORSEMENT

Introduction

[1] Jadwiga Dell (Jadwiga) died on November 16, 2010.

[2] Jadwiga was survived by her three children Angela, Michael, and Nicole Dell as well as her grandchild Nicholas, who is Michael’s son and is now 17 years old. Angela and Nicholas are now Jadwiga’s only surviving relatives.

[3] This application concerns how to interpret her Last Will and Testament (the Will) which created a disability trust for one of her daughters, Nicole. Nicole died on December 5, 2019 and was predeceased by her brother Michael.

[4] Under the Will, Jadwiga appointed her friend James O’Connor, an applicant, as Estate Trustee of her Estate. Also under the Will, Jadwiga created a disability trust for Nicole’s benefit. She appointed friends, Deborah Murray and Joyce O’Connor, two of the applicants in this application, to act as Trustees of the Disability Trust which was for Nicole’s benefit.

[5] The issue is that paragraph 4.6.6 of the Will essentially provides that upon Nicole’s death, the remainder of the Disability Trust be paid to Angela, Michael, and Nicholas in equal shares. Paragraph 4.6.6 also provides that if any of the beneficiaries were to have predeceased Jadwiga, leaving issue alive, the share of the predeceasing beneficiary is to be divided among his issue.

[6] The Will is silent on what happens if the beneficiary survived Jadwiga but predeceased Nicole, which Michael did. That is the problem. As a result, the Applicants ask for the Court’s assistance in interpreting the Will.

[7] Three issues arise in this application:

(a) Whether this application can continue in the absence of a representative of Michael’s Estate;

(b) How to interpret paragraph 4.6.6;

(c) Whether an order should be made directing CIBC to pay to the Accountant of the Superior Court of Justice any remaining interest of Nicholas Dell in the Disability Trust as the Applicant Jim O’Connor is in his late seventies and would like to conclude his work as Estate Trustee.

Positions of the Parties

[8] The Applicants ask for the Court’s assistance in interpreting the Will. They take no position on how it should be interpreted. They assert that I should apply the armchair rule. That approach requires me, as detailed further below, to put myself in the position of Jadwiga at the point when she made her Will and, when I read the Will, to construe it from that vantage point, in the light of the surrounding facts and circumstances.

[9] The Applicants also raise whether an order should be granted under rule 10.02 of the Rules of Civil Procedure permitting this application to continue in the absence of a person or entity representing Michael’s Estate.

[10] The Respondent Angela Dell takes no position on the interpretation.

[11] On behalf of Nicholas, the Office of the Children’s Lawyer (OCL) submits that Jadwiga’s intentions can be discerned from the Will and that she intended for Michael’s share to go to Nicholas if he predeceased Nicole. OCL counsel argues that Michael’s share does not vest in his Estate and goes directly to Nicholas.

[12] Michael’s Estate is not represented. There is no one to take on this responsibility. His Estate is essentially insolvent. He died with no assets. He had a stroke in 2016 and then, later in 2016, Michael had a heart attack and was hospitalized until his death.

Other Factual Considerations

[13] Michael’s aunt Barbara Beamish, who lives in British Columbia, swore an affidavit in support of this application. She helped Michael in life and did some winding up of his affairs after his death. She returned his vehicle and cell phone. She has heard nothing further from any other creditors and there appear to be none. Michael was employed prior to his death and its is likely his taxes were paid by his employer which has an obligation to withhold taxes. He filed a 2015 income tax return and continued to be employed in 2016 before his stroke. It is therefore unlikely that he owes income tax. Nicholas is his only heir.

[14] Angela cannot act as Michael’s Estate Trustee as she has a conflict.

[15] Nicholas, upon turning 18 within the next year, would also have a conflict.

[16] The Public Guardian and Trustee has declined to take on the role of administering Michael’s Estate.

[17] Barbara Beamish, Jadwiga’s sister, does not want to take on this role and, even if she did, section 6 of the Estates Act prohibits to anyone acting outside of Ontario to act as Estate Trustee where the person died intestate.

[18] If the OCL is correct in its interpretation, the issue of Michael’s Estate becomes of no consequence because his share vests with Nicholas.

Analysis

A. Should the Application Continue without Michael’s Estate?

[19] The issue of whether this application should continue in the absence of a person or entity representing