Court File and Parties

COURT FILE NO.: CV-22-00690597-00ES DATE: 20230726 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF HENRY VICTOR DYAL, deceased

RE: Neil Anthony Dyal, in his Capacity as Estate Trustee of the Estate of Henry Victor Dyal, Applicant AND: Andre Dyal, Respondent

BEFORE: C. Gilmore, J.

COUNSEL: Bryan Gilmartin and Nima Hojjati, Counsel for the Applicant Mr. Andre Dyal on his own behalf

HEARD: July 18, 2023

Reasons on Application

Introduction

[1] The Applicant seeks a declaration that the August 28, 2000 Will of the deceased is the deceased’s valid last Will (“the Original 2000 Will”) and an Order requiring the Respondent to vacate Estate property and pay occupation rent.

[2] The Respondent has produced a different version of the 2000 Will (“the Modified 2000 Will”). He requests a declaration that neither the Original 2000 Will nor the Modified 2000 Will are valid and an intestacy results. He seeks to buy out the Applicant’s interest in the subject Estate property as a residual beneficiary so that he can remain living there.

[3] The Applicant submits that neither Will gives the Respondent a life interest in the property. The Respondent therefore has no right to remain in the property without paying occupation rent. The Original 2000 Will is valid and as such, the Respondent must provide vacant possession so that the subject property can be sold. A buy out as suggested by the Respondent is not possible as the Respondent has no interest in the Estate.

[4] For the reasons set out below, the relief sought by the Applicant is granted. The Original 2000 Will must be declared valid. As such, the Respondent has neither a life interest nor a financial interest in the Estate. He must provide vacant possession and pay occupation rent and costs as the Estate is insolvent and his actions have created both delay and expense for the Estate.

Background Facts

[5] The deceased Henry Victor Dyal (“the deceased” or “Henry”) died on January 15, 2021. He was predeceased by his wife Rita Dyal (“Rita”) who died on August 30, 2019.

[6] Rita and Henry had two children, the Applicant Neil Anthony Dyal (“the Applicant” or “Neil”) and the Respondent Andre Dyal (“the Respondent” or “Andre”). Neil has two children namely Rachael and William Dyal and Andre has two children namely Brooke and Matthew Dyal (“the Grandchildren”).

[7] In November 1982 Henry and Rita purchased a property located at 15 Bickerton Crescent (“Bickerton”) in North York, Ontario. Bickerton was their primary residence. In May 1987 Henry and Rita purchased a property located at 2 Stonehill Court, Unit 39, Scarborough, Ontario (“Stonehill”). Andre continues to live in Stonehill.

[8] In 2016 a reverse mortgage in the amount of $720,866 was placed on Bickerton and a reverse mortgage in the amount of $720,866 was placed on Stonehill. Both mortgages were paid off on the sale of Bickerton in 2020. Neil alleges that Andre influenced his parents to take out the mortgages. The proceeds of the mortgages were dissipated within two years. Andre did not deny the allegations with respect to the reverse mortgages, nor did he cross-examine Neil on his affidavit in that regard. However, there is no claim with respect to the mortgages in the within Application.

[9] Rita made a Will dated June 1, 2017. That Will provided that ownership of Bickerton was to go to Neil and Stonehill was to be transferred to Andre. However, as both properties were held jointly by Rita and Henry and Rita predeceased Henry, Henry became the owner of both properties by way of survivorship on Rita’s death.

[10] In January 2020 Bickerton was transferred to Henry by right of survivorship and Neil was added on title as a joint owner. In that same month, Stonehill was transferred to Henry by right of survivorship. In March 2020, Stonehill was transferred by Neil in his personal capacity and as Power of Attorney for Henry to Neil and Henry jointly. Neil does not dispute that he held both properties in trust for the beneficiaries of the Estate of his father.

[11] In March 2020, Neil sold Bickerton in his personal capacity and as Henry’s Power of Attorney. Neil used the proceeds to pay off the mortgages on Bickerton and Stonehill. Neil paid off the balance of Rita and Henry’s debts totalling $87,404 from a line of credit registered against his own home. The Estate remains insolvent.

The Original 2000 Will

[12] The Original 2000 Will names Neil as Estate Trustee. The main dispositive terms of the Original 2000 Will are set out below:

a. The net value of Henry's RRSP Account #10233982 at the Bank of Montreal, Victoria Park and Van Horne Branch is left to his granddaughter, Brooke (Andre's child); b. Henry's 308 shares with Sun Life Financial on Account #011544528 are left to his granddaughter Rachael and grandson William in equal shares (Neil's children); c. The lump sum death benefit for Henry's Canada Pension Plan is left to his grandson, Matthew (Andre's child); d. Henry's 1993 Buick Regal Motor Car, Licence Plate #741 YWD is left to his son, Andre; and e. Any and all Real Estate Properties solely owned by Henry at the time of his death are left to his late spouse, Rita. f. The residue of Henry's Estate is left to his four Grandchildren equally.

[13] In February 2001 Henry gave Neil a handwritten “To Do” list in the event of his death (“the February 2001 written instructions”). The instructions contained a list of 17 items including cancelling credit cards and car insurance, applying for the CPP Death Benefit and filing his year of death income tax return. The instructions contained a second page in which Henry detailed his funeral instructions. Page three of the instructions contained a list of Estate Assets. In reference to the Bickerton and Stonehill properties, Henry specifically mentioned that those properties were not to form part of his Estate.

[14] In March 2001 Henry gave Neil an additional two pages of written instructions concerning the administration of his Estate and his funeral instructions (“the March 2001 written instructions”). The March 2001 written instructions were similar to those given in February 2001. He wished Neil good luck with his administration of the Estate and wrote that Neil “will do a fantastic job.”

[15] In February 2002 Henry amended his February 2001 written instructions including a provision that his wife could sell Stonehill to pay off a mortgage which had a balance at the time of $55,484. He once again provided a list of Estate assets which did not include either Bickerton or Stonehill.

The Modified 2000 Will

[16] After Henry’s death in 2021, Neil asked Andre to vacate Stonehill. Andre then produced the Modified 2000 Will. Andre’s material states that his mother gave him the Modified 2000 Will in 2016. The Modified 2000 Will gives Neil the Stonehill property and Andre a life interest in Bickerton until age 62 at which time Bickerton would revert to Neil. Andre is not a beneficiary under either Will.

[17] None of Henry’s three sets of additional handwritten instructions in 2001 and 2002 mention any life interest in Bickerton. There are several other discrepancies between the two Wills which do not change the fact that Andre has no interest in the Stonehill property. The Modified 2000 Will lacks dates and signatures on each page which are contained in the Original 2000 Will.

The Stonehill Property

[18] Andre has lived at Stonehill since December 1992. In August 2021 the Stonehill property was appraised as having a value of between $635,000 to $665,000. Stonehill requires renovations and, according to Neil, is in poor repair. A rental agreement was signed between Rita and Andre on January 1, 2013, which required Andre to pay rent of $1,450 per month. Andre denies that that the signature on the rental agreement is his own and suggests he has never been a tenant. He described residing at Stonehill “at his parents’ pleasure” and that it was their express wish that he remain there.

[19] In October 2019, Neil requested that Andre pay a minimum rent of $1,000 per month to cover the monthly Stonehill expenses. Andre offered to pay the maintenance fees of $380 per month.

[20] In January 2020, Neil requested that Andre pay a minimum of $845 if he intended to continue to reside at Stonehill. According to Neil, Andre has not paid any expenses for Stonehill other than one payment of $760. Andre denies this and claims he has paid hydro, Enbridge gas and some maintenance fees for Stonehill. Andre has not provided proof of his alleged payment of expenses.

[21] Neil denies Andre’s claims he has paid expenses for Stonehill and provides in his Reply Affidavit proof of his payment of property taxes, condo maintenance fees, Enbridge Gas payments and Toronto Utilities. The actual monthly expenses of Stonehill are $1,030. Since there are no liquid assets in the Estate, Neil has paid the expenses for Stonehill personally. Neil submits he has paid over $28,886 in expenses for Stonehill up to June 2023.

[22] In January 2020, Neil advised Andre that their mother’s Estate still had a debt of over $87,000 and that Stonehill would have to be sold to satisfy that debt. Neil requested that Andre vacate Stonehill by April 30, 2020 so that it could be listed for sale by May 1, 2020. Andre did not vacate. Neil was hindered in taking further steps at that time due to the Pandemic.

[23] In January 2021, Neil sent Andre a Notice to Terminate Tenancy due to Non-Payment of Rent and requested the payment of all rental arrears by February 1, 2021. Neil sought rental arrears of $13,930. Andre refused to vacate or pay rent.

[24] At the hearing of this matter Andre changed his position and submitted that neither the Original 2000 Will nor the Modified 2000 Will was valid and that an intestacy should result. He offered to buy out his brother’s interest in Stonehill. Andre did not provide a recent valuation for Stonehill or any evidence that he was able to obtain financing for a buyout.

The Positions of the Parties

Neil Dyal

[25] Neil submits that the Original 2000 Will meets the requirements under s. 4(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“the SLRA”) in that it is signed by the testator and with two or more witnesses witnessing each other’s signature and that of the testator. If there is any doubt concerning the Original 2000 Will, Neil agrees to submit an Application to have the Will proved in solemn form.

[26] Neil submits that there is evidence to support that the Original 2000 Will was not revoked. Neil points to the March 2001 written instructions which contain 17 specific points including such things as cancelling his father’s credit cards, applying for the CPP lump sum death benefit, locating his Sun Life insurance policy and applying to Court for probate. Page two of the March 2001 written instructions contain five specific directions with respect to Henry’s funeral including such things as “keeping it simple” and arranging for only one viewing the night before the funeral.

[27] Neil deposed that the March 2001 written instructions are consistent with how his father managed his personal affairs. He had been a judge before coming to Canada and was a very detail oriented and organized person. None of the written instructions subsequent to the Original 2000 Will modify or change the Original 2000 Will in any way nor do they purport to revoke it.

[28] Neil submits that Andre influenced Henry to put the mortgages on Bickerton and Stonehill in 2016. He deposed that his father told him he regretted doing so. Within 24 months of receiving the mortgage proceeds, they were gone and his mother died with her bank account overdrawn by $3,700.

[29] On her death, Rita’s debts exceeded $1.2M because of the mortgages. It was necessary, therefore, to sell Bickerton in order to pay off the debts. Bickerton was sold for $1.12M in March 2020. After paying out all of his parent’s debts there remained a balance of $87,404 which Neil paid from his personal line of credit. He has serviced that debt since March 2020.

[30] Neil submits that Andre signed a rental agreement with his mother in 2013 but Andre has not honoured the rental agreement. Andre refuses to pay rent for Stonehill or make anything but a nominal contribution to its expenses. Neil has personally paid all of the expenses for Stonehill since February 2021 in the amount of $1,030 monthly. Neil served Andre with Notice to Terminate his tenancy for non-payment of rent in January 2021.

[31] Neil specifically denies Andre’s assertion that he has paid for the utilities and carrying costs of Stonehill. In his reply affidavit sworn June 26, 2023, Neil provides copies of proof of payment of property taxes, condo fees, Enbridge gas, Toronto utilities and insurance, many of which have been paid since 2019. To date, Neil has personally paid $28,886 for expenses in relation to Stonehill.

[32] Neil has informed Andre that Stonehill must be sold if Andre will not cover the monthly expenses or pay rent. As Estate Trustee, Neil has fiduciary duties and must administer the Estate for the benefit of the beneficiaries. Andre is preventing Neil from carrying out his duties.

[33] Neil submits that Andre has spent much time in his affidavit material discussing his mother’s Will dated June 1, 2017. In that Will she provided that Bickerton was to go to Neil and Stonehill to Andre. However, Stonehill was always owned jointly by Rita and Henry and Rita predeceased Henry. Bickerton was then sold to pay off debts. In March 2020, Stonehill was transferred from Henry to Henry and Neil. Andre has never had an interest in Stonehill and any gift in his mother’s Will is irrelevant since her ownership passed to Henry on her death and Henry did not leave Stonehill to Andre.

[34] Neil denies the arguments raised by Andre that Henry died intestate or that additional notes allegedly written by Henry prior to 2000 should be honoured. While Neil denies that Henry died intestate and denies the validity of the additional pre-2000 notes, even if he is wrong it is of little import as those issues have no bearing on the issue of vacant possession or occupation rent sought in this Application.

Andre Dyal

[35] Andre represented himself in this proceeding. While at times his submissions were somewhat disjointed and halting, he was able to make his points and was always respectful and courteous to the Court.

[36] Andre submitted that in using his father’s Power of Attorney to transfer Stonehill to himself and his father jointly, Neil breached his fiduciary duty and there was no reason for him to put his name on title to Stonehill. Andre considered bringing a negligence claim against the lawyer who prepared the transfer but decided not to pursue that litigation.

[37] Andre stated that Neil has always wanted him out of Stonehill, and that Neil is a violent person of whom his parents were fearful. He further submitted that Neil is aware of another Will made by his father but is deliberately hiding it from the Court. I give no weight to these submissions. They were not corroborated nor are they relevant to the issues in this Application.

[38] Andre has lived at Stonehill for over 30 years. His parents never intended that he move from the property. They only required that he pay for heat, hydro and the occasional payment of maintenance fees. He submitted that the proceeds from certain Forrester’s life insurance policies held by his mother were intended to cover the expenses of Stonehill and that his parents told him they had plenty of money to cover the ongoing costs of Stonehill even after their death.

[39] Andre relies on the Modified 2000 Will which states that in the event Rita predeceased Henry, Bickerton and Stonehill were to go to Neil with Andre having a life interest in Bickerton until age 62. Andre denies that there was any rental agreement between him and his mother. He submits that the signature on the alleged rental agreement is not his. Further, he deposes that in January 2020 his brother told him he would put his name on title to Stonehill. Neil has reneged on that promise.

[40] With respect to expenses for Stonehill, Andre submits that he has also made contributions to the Enbridge bills and that Neil has paid for Enbridge on his own only since January 2023. Andre advised Neil in February 2021 that he was willing to pay the expenses for Stonehill directly. He refused to pay Neil $1,000 per month for the expenses as the expenses were only $700 per month. Andre is willing to pay for the actual carrying costs of Stonehill since the date of his father’s death on January 15, 2021. He has advised his brother that he would make the payments directly to the utility companies, the condo corporation and the City of Toronto.

[41] Andre does not agree that the Estate’s debt is $87,000. He noted that Neil paid himself $54,000 in compensation to which he was not entitled. By Andre’s calculations, the Estate’s indebtedness should only be $27,000.

[42] Andre relies on certain handwritten notes (“the Additional Handwritten Notes”) which were produced only when he filed his Responding Record. Those notes may be described as follows:

a. The November 25, 2016 note written by Henry which states, “Please give Mom the disk I left with you. Love Dad.” b. The August 2016 note written by Henry which states, “Neil, this is Dad. Please make my Will in same proportion like Mom’s, Love Dad. Henry Dyal. August, 2016.” c. The March 25, 2013 note written by Henry which states, Dear Neil, After much thought I have decided that if I were to go after Mom the Bickerton Property is to be on to you Neil Dyal. If, however, you decide to sell it then I would like 66% of the cash to be yours and 34% to be for Andre, your Brother, and his two children, our grandchildren – Brooke Catherine Dyal-Fisher, and Matthew Dyal Fisher. The letter attached explains the proportion for division of the 34%. Your father, Henry Dyal [no letter was attached to the note at Exhibit “I” of Andre’s Affidavit sworn May 10, 2023]. d. The July 10, 2011 note which provides as follows, To Neil Dyal Andy Dyal Mom is not feeling well since last night. If Mom dies, you sell Stonehill Crt Property as soon as possible. I will then go into a nursing home. You will not have to do my Income tax as the nursing home will do it. Regarding the Bickerton Property, both Mom and I want Andy to live in it until he is sixty years old, then it will have to sold with the net proceeds divided as follows: 40% for you, 40% for Andy, 10% for Rachael and William, and 10% for Brooke and Matthew. Regarding our insurance policies with Clarica (Dennis Boodrah) is the contact. My benefits from Mom’s workplace can help to pay the taxes. Andy should be able to pay utilities while Andy is living here. Good luck, and God Bless. Henry Dyal Dated July 10, 2011.

[43] Andre views these notes as a progression which shows his parents’ intention to leave a proportion of Stonehill to him. He accuses his brother of deliberately hiding the “disk” mentioned in the November 2016 note.

[44] In summary Andre seeks to retain possession of Stonehill without having to pay occupation rent, and an Order that all testamentary documents are invalid. There is therefore an intestacy and Andre would receive his share of Stonehill as one of the two surviving children of the deceased.

Analysis and Ruling

The Validity of the Wills and the Import of the Handwritten Notes

[45] I am not persuaded that any of the handwritten documents made by the deceased both prior to or after the Original 2000 Will can be considered testamentary documents.

[46] The February and March 2001 Written Instructions and the February 2002 additional written instructions read as a comprehensive “to do” list left for Neil as Estate Trustee. No one has disputed that they were written by Henry or that they are consistent with Henry’s organized and detailed nature.

[47] Those Written Instructions cannot be construed as changing the Original or even the Modified 2000 Will. They are simply instructions for post death administration (applications for probate, CPP death benefits etc.) and funeral instructions. They do not purport to dispose of property or revoke any prior Will. Of note is that none of those Written Instructions include either Bickerton or Stonehill as assets of the Estate.

[48] In O’Donovan v. O’Donovan, 2009 ONSC 64828, the Court considered circumstances in which it was alleged that a Will had been destroyed. The Court at para. 101 confirmed that its role was to determine the testator’s intentions by means of the words used and not what the deceased may have intended to do.

[49] As such, the Written Instructions are relevant only in relation to the actual words used. In short, they contain a “To Do” list written by a very organized parent who wanted to ensure that all details were attended to on his death. They cannot be interpreted to revoke any prior Will as there is no express intention to do so contained in the Written Instructions nor is there any reference to prior Wills or the disposition of property.

[50] As for the Additional Handwritten Notes produced by Andre in his Responding Record, dated between 2011 and 2016 those notes are uncorroborated, do not purport to dispose of property nor do they specify any intention to revoke prior Wills. I find they are therefore not testamentary in nature.

[51] With respect to the November 2016 note, the suggestion that giving a disk to someone is intended to be a testamentary intention can be given no weight by this Court. Further, the request in the August 2016 note that Neil make a Will for his mother is also not appropriate and cannot be relied upon. Under no circumstances could Neil make a Will for his mother.

[52] The 2013 note also cannot be relied upon because it relates to the disposal of property (Bickerton) which did not exist on the date of death. Bickerton was required to be sold prior to Henry’s death to pay off the parents’ debts.

[53] I also do not give any weight to the July 2011 handwritten note as it again deals with Bickerton. Any proceeds from the sale of Bickerton were used to pay debts for what is now an Estate which remains insolvent.

[54] There is no reason not to declare the Original 2000 Will as valid as it was properly witnessed and executed. It is not a holograph will as it is not entirely in Henry’s handwriting.

[55] The Modified 2000 Will does not meet the requirements of s. 4 of the SLRA as it was also not a holograph Will and was therefore not properly witnessed.

[56] Even if I am wrong and the Modified 2000 Will is valid it makes no difference to the outcome of this Application which is that Andre has no financial or life interest in the Estate. I therefore find there is no intestacy. The Original 2000 Will must stand and the only issue remaining to be determined by this Court is the issue of vacant possession and occupation rent.

Vacant Possession and Occupation Rent

[57] Andre has lived at Stonehill for 30 years and maintains that it was his parents’ wish that he remain there during his lifetime. The problem with this submission is that there is no evidence to support that this was the wish of the survivor of the two parents, his father.

[58] In fact, the evidence provided is contrary to Andre’s position. Neither the Original 2000 Will nor the subsequent handwritten notes give Andre any interest in the Estate at all. Even on an intestacy there would need to be a buyout or a sale of Stonehill. Andre provided no evidence of his ability to buy out his brother’s interest on an intestacy.

[59] Andre must vacate Stonehill. His refusal to contribute to expenses or realistically recognize that the Estate is currently insolvent has resulted in unnecessary delay which has forced the issue to a hearing.

[60] I reject Andre’s argument that the proceeds of any insurance policy owned by either parent was intended to be used to pay for the expenses of Stonehill while he resided there. There is no evidence at all to support this contention.

[61] Andre’s argument with respect to any contributions to Stonehill must be rejected for the following reasons:

a. Neil has provided comprehensive evidence that he has been contributing to all of the expenses for Stonehill since his father died and even before. He should be reimbursed for those expenses. b. Andre submits that he refuses to pay Neil directly for Stonehill expenses for fear this will be considered as rental payments and he will be subject to landlord/tenant legislation. This appears to be a convenient excuse not to contribute to expenses. c. Andre submits that he cannot pay utilities or taxes directly as he has been advised by the relevant entities that they will refuse his payments because he is not an owner. His position means that he pays nothing at all because if he pays Neil he is concerned about his status as a tenant and the other entities are refusing his payments. Andre appears content to take advantage of the situation which results in him not making any contributions at all. d. Andre alleges he has made contributions to expenses but has provided no evidence of this. e. There is evidence that Neil is financing the expenses for Stonehill from his own line of credit. Andre does not seem concerned about this at all.

[62] There is ample evidence that Andre has been given notice that Stonehill will have to be sold since early 2020 and is aware that the Estate is insolvent. Yet, he continues to occupy Stonehill and refuses to vacate based on what he says are his parents’ wishes. Those “wishes” are not corroborated or contained in either the Original or Modified 2000 Will. Any indication of a life interest held by Andre related only to Bickerton which has long been sold.

[63] In Broos v. Broos, 2009 ONSC 68463, the Court found that a beneficiary had occupied a property that was the main asset of the Estate without justification and without paying compensation to the Estate. The Court found at para. 5 that the beneficiary had denied the Estate the ability to realize rental income and had benefited himself to the detriment of the beneficiaries.

[64] In Filippelli Estate, 2017 ONSC 4923, 33 E.T.R. (4th) 88, the Court ordered vacant possession where the son of the deceased asserted he was a tenant. There was no oral or written tenancy agreement. In that case, the Court found that the son was judgment proof and therefore had no incentive to leave.

[65] In the case at bar, Andre denies he is a tenant. He concedes that he has resided at Stonehill from the date of his father’s death without paying expenses. Even on his own admission his contributions have been nominal and undocumented. Further, he is not a beneficiary of the Estate and in short has no right of occupancy at all as a tenant, a beneficiary or by way of any life interest.

[66] Occupation rent is an equitable remedy. In Bergmann v. McMahon, 2010 ONSC 993, 54 E.T.R. (3d) 49, Daley J. confirmed at para. 38 that in order to establish a right to occupation rent, it must be demonstrated that:

(1) the party in possession of the premises has been enriched, (2) there has been a corresponding deprivation suffered by those entitled to the property, and (3) the absence of a juristic reason for the enrichment.

[67] Applying that law to the facts of this case I find as follows:

a. Andre has been enriched by living rent free at Stonehill; b. The Estate has been deprived of rental income or the sale proceeds that could have been obtained had Andre vacated when requested in 2020. There is further personal deprivation to the Estate Trustee in the amount of $28,886 in expenses covered by him personally. Andre did not dispute this amount. c. There is no reason for the enrichment as I have already found that Andre had no right of occupancy as a tenant, beneficiary or holder of a life interest.

[68] In terms of the quantum of occupation rent, Daley J. noted in Bergmann, at para. 49 that the assessment of quantum may be based on the best available evidence.

[69] The best available evidence in this case is the email of Josh Howard dated July 7, 2023 which is attached at Exhibit “A” to the affidavit of Cassan Atkins dated July 12, 2023. Mr. Howard is a sales representative with Kalles Real Estate Ltd. in Toronto. As Andre refused access to Stonehill by Mr. Howard, he prefaced his opinion by saying that it was challenging for him without photos or access to the unit but was able to base his opinion on similar units at 44 and 54 Stonehill Court.

[70] Mr. Howard considered that rents had gone up in Toronto on average 15.5 percent from May 2022 to May 2023. He therefore calculated rent from January 15, 2021 to January 15, 2022 at $2,500 per month, from January 15, 2022 to January 15, 2023 at $2,725 per month and from January 15, 2023 to July 14, 2023 at $3,150 per month for a total of $81,600 to July 14, 2023.

[71] Andre did not dispute these numbers, ask to cross-examine Ms. Atkins or provide his own opinion on rental values. I therefore find that the evidence of Mr. Howard is the “best evidence available” and may be relied upon by this Court. Andre must pay occupation rent to the Estate.

Ruling and Costs

[72] Given all of the above, I make the following Orders:

a. The Original 2000 Will is valid and complies with the required execution requirements under the SLRA. An Application to prove the Original 2000 Will is not required. b. The Modified 2000 Will is not valid and does not serve to revoke the Original 2000 Will. c. Any of the handwritten notes by the deceased written either before or after execution of the Original 2000 Will are not testamentary instruments and do not serve to revoke or modify the Original 2000 Will in any way. d. The Respondent has no right to occupy the Stonehill property and must vacate the property by September 30, 2023. e. If the Respondent fails to do so, the Applicant may apply for a Writ of Possession with enforcement by the Sheriff’s Office. f. The Respondent must pay occupation rent in the amount of $80,000 representing his occupation of Stonehill for the period of January 2021 to date. No further occupation rent is required to be paid up to September 30, 2023. However, if Andre refuses to vacate and further delay is experienced, occupation rent will continue to accumulate as of the date of this judgment.

Costs

[73] The Applicant seeks costs on a full indemnity scale in the amount of $50,000. His substantial indemnity costs were $42,000 and his partial indemnity costs were $32,000.

[74] The Applicant submits that this Application was entirely unnecessary and caused solely by the Respondent’s refusal to accept that he must vacate Stonehill as he is not a beneficiary of the Estate.

[75] The Respondent sought costs of $16,144 if successful. He conceded that a portion of those costs related to his aborted claim against Mr. Jones in relation to the transfer of Stonehill and Bickerton. The Respondent did not provide a copy of any accounts rendered by Ms. McEwan or Ms. D’Amico.

[76] The Applicant served a r. 49 Offer to Settle dated July 11, 2023. In order to avoid the costs of preparation and attendance at this hearing, the Applicant agreed to accept payment from the Respondent of $29,648 being reimbursement to the Applicant for the expenses he had personally paid for Stonehill. He agreed to forego the payment of occupation rent in exchange for this amount so long as the Respondent vacated Stonehill by September 21, 2023.

[77] He also sought an agreement that the Original 2000 Will was valid, that the Applicant’s costs would be paid from the Estate and that the Respondent would pay his own costs.

[78] Clearly, the Respondent should have accepted this very generous offer. He is now faced with paying a large amount of occupation rent, leaving Stonehill in just over two months and paying the Estate’s costs personally. This was his choice.

[79] I should add that the Respondent’s position in defending this Application was both confusing and untenable. He relied on handwritten notes which were produced only when he filed his Responding Record, sought to revoke the Original 2000 Will and rely on the Modified 2000 Will and then changed his position again asking that the Court find that there was an intestacy. It was a moving target for the Applicant who responded as professionally as possible in the face of ever-changing positions taken by the Respondent.

[80] The Respondent must pay the costs of the Estate Trustee personally. The Estate Trustee has been funding his brother’s living expenses and paying the interest on the Estate debts while the Respondent continues with his long standing, ever-changing and flawed defence. In consideration of the Offer to Settle and my rejection of all of the Respondent’s arguments I order him to pay costs of $42,000 personally to the Estate.

[81] If the Respondent does not pay those costs within three months of the date of this judgment, the Estate Trustee is entitled to have those costs paid from the Estate but may pursue reimbursement to the Estate from Andre personally if so advised.

[82] The Applicant’s counsel may provide a revised draft Order for my review and signature. Approval of the Order as to form and content by the Respondent is not required.

C. Gilmore, J. Date: July 26, 2023