Court File and Parties
Court File No.: CV-22-89156, CV-22-88594 Date: September 25, 2023 Ontario Superior Court of Justice
Between: Susan Cambareri Applicant/Respondent by Cross-Application – and – Mario Sorrenti Respondent/Applicant by Cross-Application - and – Paul Sorrenti, and the Estate of Pasqualina Sorrenti Respondents
Counsel: Raymond Murray for Susan Cambareri Bryan Delaney for Mario Sorrenti No one appearing for the other respondents
Heard: May 15, 16, and 29, 2023
Amended Reasons for Judgment
The release date of the original Reasons for Judgment dated August 29, 2023 was corrected on September 25, 2023, at para. 113 and 114, the explanation of the correction is appended.
Justice Sally Gomery
1On April 24, 2020, Pasqualina Sorrenti passed away. She and her late husband, Annunziato Sorrenti, had three children: Paul Sorrenti, Mario Sorrenti, and Susan Cambareri. For simplicity’s sake, I will refer to family members by their first names.
2In Pasqualina’s 2006 Will, she gave Mario an option to purchase her house at 1220 Surrey Avenue in Ottawa within six months of her death. The price was the fair market value at the date of the offer to purchase determined by an independent qualified appraiser appointed by her Estate trustee. The Estate’s assets were otherwise to be divided between Mario, Paul, and Susan equally. Mario and Paul were appointed Estate trustees. Paul has since renounced his appointment.
3Mario was managing his mother’s property and living at 1220 Surrey when Pasqualina died. He has remained there since. He has never applied for a certificate of appointment as Estate trustee or served an offer to purchase the property. In 2022, Susan applied to the court for the partition and sale of 1220 Surrey, accountings before and after Pasqualina’s death, occupancy rent, and the appointment of an estate trustee during litigation. Mario responded with his own application, seeking a declaration that he remains entitled to exercise the option to purchase for $580,000.
4The two Applications were heard together. There are six questions to be resolved:
(1) Can Mario still exercise the option to purchase 1220 Surrey? (2) What is the fair market value of the property? (3) Should Mario be ordered to provide an accounting of his administration of Pasqualina’s property before her death and of the Estate’s property after her death? (4) Should Mario be ordered to pay occupancy rent for his occupation of 1220 Surrey and, if so, how much? (5) Who, if anyone, should be appointed Estate trustee? (6) Should Mario be ordered to vacate 1220 Surrey so that it can be sold?
5For the reasons that follow, Susan’s Application is granted. I conclude that Mario’s option to purchase has lapsed; that he is required to account for his administration of Pasqualina’s property before her death and the Estate’s property since her passing; that he is required to pay occupancy rent from November 1st, 2020 forward; that Travis Webb should be appointed as Estate Trustee during Litigation; that 1220 Surrey should be sold; and that Mario must vacate the property within 60 days. Mario’s Application is dismissed.
Background
6I will begin by providing an overview of the facts giving rise to this litigation. I will make further findings on the evidence when I address each of the questions to be resolved.
7Pasqualina and Annuziato raised Paul, Mario, and Susan at 1220 Surrey, a three bedroom bungalow built in the 1950s. There is an apartment in the basement with its own entrance. Pasqualina and Annunziato remained in the house after their children left to establish their own residences. Paul is now 72 years old, Mario is 66, and Susan is 65.
8Annunziato died on June 11, 2018 and Pasqualina became the sole owner of 1220 Surrey. At some point prior to his father’s death, Mario moved back home, occupying a bedroom on the main floor. He said that he wanted to care his parents. He also mentioned that his own house burned down in 2017.
9After Annunziato died, Mario managed his mother’s money and the house, including the rental of the basement apartment. His evidence about Pasqualina’s capacity to manage property towards the end of her life was inconsistent. In cross-examination, however, he admitted that, by June 2018, she had been diagnosed with severe dementia and delusions. Her cognitive health was so poor that Mario was contemplating bringing her to hospital to have her admitted. He wanted to keep her at the house, but she was not properly medicated. Mario had to rent a condominium so that he would have a place to sleep uninterrupted by his mother’s screaming at night.
10An application to open Scotiabank savings Account 1191 dated June 29, 2018 was produced into the record. Pasqualina, Mario, and Paul are listed as joint accountholders. An application for deposit services for Scotiabank chequing Account 5625, with the same joint accountholders, is dated July 11, 2018. The Accounts were subject to a right of survivorship. According to both Paul and Mario, Paul was put on the Accounts along with Mario because Mario had health problems and might predecease Pasqualina.
11Mario denied that he became a joint accountholder on his mother’s Accounts only in 2018. According to him, the only change at that time was that Paul was added as an additional joint accountholder. I do not accept this evidence. There is no evidence that Mario was a joint accountholder on his parents’ accounts prior to June 2018. A transaction history for Account 1191 produced at trial shows that the earliest recorded activity on the Account was on July 12, 2018, when just under $61,000 was deposited in it. Each page of that record states that the Account was opened on June 29, 2018. It is not clear when Account 5625 was first opened, but Mario testified that he could not get any earlier statements for either Account because they belonged to his parents. This contradicts his claim that he was a joint accountholder before June 2018. This is another instance, one of many, where I found Mario’s evidence to be unreliable.
12In September 2018, Pasqualina became so violent that the police intervened and she was transported to the Ottawa Hospital. She remained there until January 2019, when she was transferred to the Royal Ottawa Mental Health Centre. In March 2019, she was discharged to a long term care home. She died on April 24, 2020, having never returned to 1220 Surrey. Mario continued to live there.
13Pasqualina and Annunziato had executed mirror wills in November 2006. In Pasqualina’s Will, she appointed Mario and Paul as her joint executors if Annunziato predeceased her. As mentioned at the outset, the Will gave Mario an option to purchase 1220 Surrey within six months of Pasqualina’s death for the property’s fair market value as determined by an independent qualified appraiser appointed by her Estate trustee. The Will provided that the residue of the estate should be distributed equally to the three children.
14I find that Mario was familiar with the terms of his parents’ wills from the time they were executed. Although at trial he initially denied that he discussed the terms with his parents in 2006 or saw the Wills when they were executed, he unequivocally admitted the contrary during his out-of-court cross-examination in 2022. He also admitted, at trial, that he read the wills after Annunziato died in 2018. Mario accordingly knew that he would have the option to purchase 1220 Surrey at fair market value but that he would have to exercise it in the six months after Pasqualina’s death.
15After Pasqualina was hospitalized in September 2018, Mario used the money in the two Scotiabank Accounts to pay utilities, property taxes and property insurance for 1220 Surrey. He also used it for upgrades to the house. He had air conditioning, a new dishwasher, new blinds, and new hardwood flooring installed. These last few items cumulatively cost just over $18,000.
16A few weeks after Pasqualina died, Mario retained an appraiser, Joel Beauregard, to provide an opinion about the fair market value of 1220 Surrey. For reasons he never really explained, he instructed Beauregard to determine the property’s value as at October 2019, six months prior to Pasqualina’s death. Beauregard did not have access to the interior of the house and Mario did not tell him about the recent improvements. Beauregard assessed the retroactive value of 1220 Surrey at $370,000.
17On September 1st, 2020, Mario’s lawyer sent a letter to Susan and Paul, seeking their signature on a consent for Mario’s application to be appointed, without a bond, as the sole Estate trustee for their mother’s Estate pursuant to her 2006 Will. The lawyer did not send Susan a copy of the notice of application or a list of the Estate’s property and debts. She had received a copy of Pasqualina’s Will in late May 2020, from Paul. Paul signed the consent as well as a renunciation of his right to serve as trustee. Susan did not sign the consent.
18Susan’s lawyer had by this time begun seeking disclosure of Pasqualina’s banking records and an Accounting from Mario of his management of her affairs. Some but not all records were provided. No accounting was provided.
19Having failed to receive Susan’s consent, Mario took no further steps to obtain an appointment as Estate trustee. He did not send an offer to purchase 1220 Surrey to the other beneficiaries. He did not obtain a further appraisal of the property until late 2022. He did apparently file a tax return on behalf of the Estate.
20When Pasqualina was alive, she rented the basement apartment at 1220 Surrey to a tenant for $1,000 a month, paid in cash. Mario took over the rent collection at some point no later than September 2018. After the existing tenant moved out, Mario rented it to a couple with a child beginning January 1st, 2020 for $1,400 per month. This arrangement fell apart when the couple separated and the spouse who continued to occupy the apartment ceased to pay any rent. When she finally left in December 2020, Mario sued her in Small Claims Court and got judgment for $9,300 but could not find her to collect what was owed. In total, according to Mario, he collected $9,800 in rent after January 1st, 2020. It is impossible to determine how the rent collected was spent, as records for the Accounts do not show regular deposits or transfers of monthly rent in 2018, 2019 and 2020.
21After December 2020, Mario ceased to rent out the basement apartment. At some point, Mario’s daughter and grandchild began occupying the basement unit, rent-free. They continue to live there today.
22In 2022, Susan applied for the partition and sale of 1220 Surrey, accounting of Mario’s management of Pasqualina’s property before her death and the Estate’s property after her death, the appointment of an estate trustee, and other relief (CV-22-88594 or Susan’s Application). Mario responded with his own application, seeking a declaration that he retains the right to purchase 1220 Surrey (CV-22-89156 or Mario’s Application).
23The two Applications were heard together on March 15, 16, and 29, 2023 in a hybrid summary trial. Four witnesses testified at the hearing: Mario; two appraisers, Joel Beauregard and Terry Egan; and Phillip Bottriell, a home inspector. The evidence also included affidavits sworn by the parties and the transcripts of their out of court cross-examinations.
Question (1): Can Mario still exercise the option to purchase 1220 Surrey?
24Paragraph 5(i) of the Will gives Mario an option to purchase 1220 Surrey in the six months after Pasqualina’s death:
If, at the time of my death, I am the owner of the lands and premises located at 1220 Surrey Street, Ottawa, Ontario, or any substitute property therefor, my son, Mario Sorrenti, if he survives me, shall have the first option and right to purchase the same from my estate, such right or option to be exercised within six months of the date of my death. The price to be paid by him shall be fair market value as at the date when the offer was made and shall be as determined by an independent qualified appraiser chosen by my Trustee, and costs incurred in obtaining the appraisal being charged to my general Estate. If my son does not purchase the lands and premises, the land and premises shall continue as an asset of my general estate and be dealt with as part thereof.
25Susan contends that the option to purchase has lapsed because Mario did not exercise it on or before October 24, 2020. Mario argues that he could not have exercised the option at the time because Susan was disputing his appointment as sole Estate trustee.
26When interpreting a will, a court must determine the testator’s actual or subjective intention as to how she intended to dispose of her property: Trezzi v. Trezzi, 2019 ONCA 978 at para. 13; Ross v. Canada Trust Company, 2021 ONCA 161, at para. 36. As stated by the Ontario Court of Appeal in Burke (Re), [1960] O.R. 26 (C.A.), at p. 30:
Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.
27This approach is sometimes referred to as the “armchair rule”. “Sitting in the place of the testator, the court assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its member”: Ross, at para. 39.
28The armchair rule has traditionally been relied upon when a testator’s intention cannot be ascertained from the plain meaning of the language used in their will. In its recent decision in Ross, however, the Ontario Court of Appeal observed at para. 41 that courts are treating the rule “as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal”. Evidence of surrounding circumstances should accordingly be taken into Account before a court reaches any final determination of the meaning of words “even if the words, themselves, do not appear to be ambiguous or unclear”: Zindler v. The Salvation Army et al., 2015 MBCA 33, at para. 14, cited approvingly in Ross, at para. 41.
29In applying these principles, the Court of Appeal in Ross upheld the interpretation of a judge who first tried to discern the testator’s intention from the plain meaning of her will’s language, then took a step back to consider the circumstances surrounding the will’s execution.
30Based solely on the language in Pasqualina’s Will, her intention was as follows:
- If she owned 1220 Surrey at the time of her death and Mario survived her, he would have the option to purchase the property from her Estate;
- The option would have to be exercised within six months of the date of her death;
- The price that Mario would pay would be the fair market value as at the date the offer was made, as determined by an independent qualified appraiser chosen by her Trustee, with the costs of the appraisal being paid by the Estate;
- If Mario did not exercise the option to purchase, 1220 Surrey would be an asset of her general Estate, which means that the proceeds of its sale would be divided equally between her children.
31Taking a step back and applying the armchair rule, there is no evidence suggesting that Pasqualina had any intention other than that which is expressed through the plain meaning of the language in her Will.
32As already mentioned, Mario’s evidence regarding his knowledge of his parents’ Wills was wildly inconsistent. At trial, he initially denied that his parents told him in 2006 that the wills would include an option for him to purchase 1220 Surrey. He affirmed that all he knew was that he would be named trustee, and that he understood that this would allow him to purchase the property. Mario then qualified his answer by admitting that he knew he would have an option to purchase, but not that it would be subject to a six-month deadline. When asked whether his parents further explained this term to him, he replied unequivocally: “No sir, not at all”.
33Mario was then confronted with the transcript of his out-of-court cross-examination on June 2, 2022, during which he admitted that his parents explained the entire option to purchase term to him before they executed their 2006 wills, including the condition that he would have six months to exercise the option to purchase the property at fair market value. His answers on the 2022 transcript on this issue were clear and unambiguous. Mario continued to insist, implausibly, that his evidence in 2022 was mistaken. He did not explain why he would have given inaccurate answers during his out of court examination, nor why he failed to correct this testimony prior to trial.
34A short while later, Mario admitted that he was deeply involved in the process whereby his parents executed their 2006 wills. He admitted that he found the lawyer who prepared the Wills, he arranged for his parents’ attendance at the lawyer’s office, and he attended the meeting with the lawyer to execute them with his parents and Paul. When asked whether he had any further discussions with his parents about their wills during this process, however, he said he did not remember, and then said he might have but that the option to purchase was again not mentioned. He was then confronted again with answers he gave during his 2022 cross-examination, in which he admitted that the option to purchase, including the time limit and the fair market value stipulation, was explained to him for a second time after his parents executed their wills. Finally, on the second day of his cross-examination, Mario conceded that he reviewed the wills when they were executed, again when his father died in 2018, and for a third time when his mother died in 2020.
35This review of Mario’s testimony about the wills shows him to be an evasive and unreliable witness. But he was consistent on at least one point. He never suggested that the terms of Pasqualina’s Will did not reflect what she actually intended. He and Paul both testified that their parents wanted 1220 Surrey to remain in the family, and that Mario should have it. They were both aware, however, that Pasqualina’s Will gave Mario nothing more than an option to purchase that had to be exercised within a set deadline. Had they thought that these terms did not reflect their mother’s intention, I would have expected that they would have discussed this with her and proposed that she execute a new will at some point between 2006 and 2018. There is no evidence that they did so.
36I conclude that Pasqualina’s intention was that Mario have six months from her death in which to exercise his option to purchase 1220 Surrey at fair market value.
37Mario argues that Pasqualina did not foresee that it might be impossible to appoint an Estate trustee within six months of her death, and that her Will should be interpreted such that the six month window for exercising the option to purchase would begin to run only after the appointment of one or more Estate trustees. I do not accept this argument.
38Mario’s argument would require me to rewrite the terms of Pasqualina’s Will in the absence of any evidence that it fails to reflect her actual intention. The argument furthermore assumes that, by refusing to accept Paul’s renunciation to his appointment as Estate trustee, Susan made it impossible for him to exercise the option within six months of Pasqualina’s death.
39The option to purchase in Pasqualina’s Will does not require that a trustee be appointed prior to Mario taking steps to exercise the option to purchase. A trustee would have to be in place to choose an independent qualified appraiser to determine the fair market value of the property as at the date the offer was submitted. The purchase price could therefore not be finalized until an Estate trustee was appointed. There was nothing, however, preventing Mario from obtaining an appraisal of 1220 Surrey after Pasqualina’s death (as he in fact did, although he told the appraiser to determine the value of the property as at October 2019) and serving either an offer to purchase at the appraised price or, at the very least, a notice of his intention to exercise the option, on or before October 24, 2020.
40It was furthermore reasonable for Susan to withhold her consent to Mario’s sole appointment as Estate trustee in September and October 2020. She had been kept in the dark about the administration of her mother’s property prior to her death. She did not receive any information from Mario or Paul about the Estate’s assets or liabilities when Pasqualina died. She was not provided with any appraisal of 1220 Surrey. She did not even receive a copy of the application for a certificate of appointment in respect of which Mario sought her consent.
41The evidence at trial showed that Susan was justified in her concerns about Mario’s management of their mother’s property. No accounting has ever been provided for thousands of dollars that disappeared from the Accounts prior to Pasqualina’s death. Mario directed Beauregard to appraise 1220 Surrey as at October 2019, and he failed to provide Beauregard with information about recent upgrades. I infer that he did this because he wanted to be able to purchase the property at a lower price than its actual fair market value in 2020, as no alternative explanation was ever suggested.
42Mario has failed to prove that he took meaningful steps to exercise the option to purchase in the six months or even a year after Pasqualina’s death. He did not notify Susan or Paul in writing that he intended to purchase 1220 Surrey pursuant to the option. He did not retain an appraiser to obtain a fair market value as at April 24, 2020, or in year that followed. He did not seek direction from the court about an extension of the time to exercise the option to purchase after Susan refused to consent to his appointment as Estate trustee.
43Mario argues that the email that his lawyer sent to Susan on September 1st, 2020 asking for her consent to his appointment as Estate trustee conveyed his intention to purchase 1220 Surrey. The lawyer’s email makes no reference to Mario’s option to purchase, and Mario’s intention to exercise the option to purchase cannot be reasonably inferred from it. The 2020 Beauregard appraisal did not determine the fair market value of the property after Pasqualina’s death. In any event, Mario did not send Susan a copy of the appraisal report until May 2021. She was not even aware, prior to receiving it, that an appraisal had been performed.
44Mario claims that he spoke to Susan about purchasing the house in March 2019, roughly a year prior to Pasqualina’s death. He testified that Susan expressed the view that their mother wished to sell the house, which Mario believed was untrue. He thought that Susan was after some money. He agreed to have 1220 Surrey appraised, however.
45I do not accept Mario’s account of this conversation with Susan. As already mentioned, he was generally not a credible or reliable witness. He contradicted himself or denied facts that were proved through contemporaneous documents. Some of his testimony was incoherent. He was so openly hostile towards Susan and so convinced of his entitlement to1220 Surrey, that, in my view, he was prepared to take clearly unsustainable positions.
46Even if Mario had told Susan that he wanted to purchase 1220 Surrey in March 2019, though, this would not have constituted the exercise of the option to purchase. The option did not come into effect until Pasqualina’s death a year later.
47In his affidavit, Paul states that he is “aware” that Mario tried to get Susan to consent to purchase the house. This is unsourced hearsay, as is most of Paul’s affidavit evidence.
48Based on the evidence at trial, Mario has never made a formal offer to purchase 1220 Surrey or tendered funds to do so. Both Mario and Paul referred to Mario’s attempts to settle this litigation by offering to purchase 1220 Surrey for $360,000 and paying Paul and Susan $120,000 each. Evidence of settlement negotiations is inadmissible. Making a settlement offer was furthermore not the equivalent of exercising of the option to purchase in Pasqualina’s Will, and the price proposed was well below the fair market value of the property as determined by subsequent appraisals. At trial, Mario expressed the view that the fair market value of the property was $339,000, the value ascribed to it by MPAC for property tax purposes. An MPAC value not the same thing as fair market value. Pasqualina’s Will does not entitle Mario to purchase 1220 Surrey for its MPAC value.
49Mario did not present evidence that he has the means to purchase 1220 Surrey at its fair market value. He admitted, in cross-examination, that he is not currently approved for a mortgage. Based on his evidence in out-of-court examinations, he currently receives Old Age Security and Canada Pension Plan benefits. At trial, he refused to answer questions about his financial situation on the basis that this was “none of Susan’s business”. He expressed the belief that Paul would support his purchase of 1220 Surrey so that it would stay in the family. In his affidavit, Paul does not explain his anticipated role in financing the purchase or unambiguously say that he is prepared to lend Mario whatever money he might need for the fair market value.
50Mario relies on Loran v. Weissmann, 2019 ONSC 59, aff’d 2019 ONCA 962, and Vansickle v. Vansickle, 2022 ONCA 643.
51Vansickle involved the interpretation of a will giving one of the testator’s children an option to purchase “a farming business carried on by me”. The other beneficiaries argued successfully on an application for directions that the option had lapsed, because the testator had ceased farming the land herself prior to her death. The Court of Appeal overturned this decision on appeal. It held that the testator continued to operate a farming business when she died, because she still owned the specific farmland at that location and received income from a third party who farmed, which the testator claimed as farm income on her taxes. The Court concluded that the option to purchase had not lapsed.
52The issue in Vansickle is entirely different than the issue in this case. It does not deal at all with the question of whether the time to exercise an option to purchase may be suspended.
53In Loran, an employee of an auto supply company tried to exercise an option to purchase it granted to him in the former owner’s will. The employee attempted to exercise the option, but he and the estate trustee were unable to agree on the price to be paid and other terms of the sale. The parties applied to the court for directions. The trustee argued that the option to purchase had expired, because the employee had not accepted the terms of sale proposed by the estate within 30 days. Penny J. held that there was a bona fide dispute over the appropriate purchase price and, until that dispute was resolved, it was unreasonable to force the employee to either agree to a price that he believed was wrong or forfeit his right to exercise the option to purchase: Loran, 2019 ONSC 59, at para. 21. This finding was not challenged on appeal.
54The situation in Loran is distinguishable from the situation at bar. In September 2020, Susan did not dispute how Mario proposed to exercise the option to purchase or take the position that he had to accept her proposed terms to do so. The dispute that arose was with respect to Mario’s management of Pasqualina’s property prior to her death, and whether he should be appointed sole Estate trustee. As I have already found, a dispute about these issues would not have prevented Mario from seeking to exercise the option. He simply did not do so.
55In Bank of Nova Scotia Trust Company v. Charles, 2021 ONSC 1361, Gilmore J. declined to grant an extension to a beneficiary who had an option to purchase property in his mother’s will nor to allow him to use his share of the residue of the estate to do so. In reaching this decision, he held it was relevant that:
- the beneficiary seeking to exercise the option did not bring a motion to extend the deadline with the deadline in the will;
- the beneficiary did not show that he had the means to complete the purchase based on the record before the court, but instead sought to use his share of the residue of the estate to do so; and
- delays in the administration of the estate were due to the beneficiary’s own conduct.
56Similar considerations apply in this case.
57Mario and Paul are convinced that their parents wanted 1220 Surrey to remain in the family, that they intended that Mario should have it and that Susan should not. But if this was Pasqualina’s intention, she could have simply bequeathed the property to Mario. She did not, nor is there any evidence that she ever intended to simply gift 1220 Surrey to him. Pasqualina’s Will gave Mario an option to purchase open to exercise for a relatively short period of time. He did not exercise that option before the deadline or take any meaningful steps to do so.
58I conclude that the option to purchase in Pasqualina’s Will lapsed on October 24, 2020. Mario has therefore lost the right to purchase 1220 Surrey for fair market value as determined by an independent appraiser retained by the Estate trustee.
(2) What was the value of 1220 Surrey at Pasqualina’s death?
59Because I conclude that the option to purchase in Pasqualina’s Will has lapsed, I do not need to answer this question. I will however comment on the evidence regarding 1220 Surrey’s fair market value.
60As already mentioned, Mario’s appraiser Joel Beauregard concluded that 1220 Surrey had a fair market value of $390,000 as at October 1st, 2019. Beauregard did not go inside the house due to Covid-19 pandemic restrictions in early 2020. He relied on Mario for most of his information about the property’s condition. Based on what Mario told him, Beauregard evaluated the retroactive fair market value of 1220 Surrey on the understanding the property was in below average condition. He did not recall Mario telling him that air conditioning and new hardwood flooring had been installed. Beauregard admitted in cross-examination that these renovations would have had an impact on the appraised value. Beauregard also admitted that he compared 1220 Surrey to bungalows with a smaller square footage and no basement apartment, and that he made a calculation error in deriving the fair market value based on comparable property sales.
61On January 14, 2022, an appraiser retained by Susan, Terry Egan, issued a report appraising the fair market of the property at that time at $750,000. Egan did not have access to the interior of 1220 Surrey, but he was aware of some of the renovations that Mario had done based on photographs and information he obtained from Susan. He knew, for example, about the new hardwood flooring, the air conditioning, a new garage door, and an upgraded washroom. Egan considered that the property was a duplex, consisting of the main unit on the first floor and the lower unit in the basement. He therefore assessed the property’s value based on recent sales of comparable duplex properties.
62On June 10, 2022, Beauregard issued a second retroactive appraisal, in which he set the fair market value of 1220 Surrey at $540,000 as at October 2020. Although he continued to describe 1220 Surrey as a bungalow as opposed to a duplex, he included comparable properties with a basement apartment. Beauregard testified that he prepared his second report based on the same information about the condition of the property he relied on in his first report even though, by this time, Mario had made further upgrades. Mario provided Beauregard with a copy of Egan’s report, which Mario described as “bogus”. Mario’s email implied that Egan’s report described renovations that had not been done, when in fact they had.
63In November 2022, Mario retained Phillip Bottriel, a professional engineer and registered home inspector. In his report and at trial, Bottriel testified that the house was generally sound but that significant repairs were required to the front porch, exterior retaining walls, the foundation, and the electrical and plumbing systems. In a written report, he estimated that it would cost $143,000 to do this work. This estimate has limited value because, by Bottriel’s own admission, he lacks the expertise to cost out repairs.
64On January 18, 2023, Beauregard provided a third appraisal at $580,000. He saw Bottriel’s report prior to issuing it. He also finally had the opportunity to visit the interior of the house. When Beauregard sent his third appraisal to Mario, Mario challenged the new valuation, saying that it was $100,000 too high. He questioned whether Beauregard had considered the Bottriel report. Beauregard testified that he found this offensive, because he felt that Mario was trying to influence his appraisal inappropriately. He said it was uncommon for a client to do this. He wrote to Mario that the deficiencies mentioned by Bottriel had a sizeable impact, but not as much as Mario thought. He stood by his report, writing that he was “not hired to provide a value that you deem fair” but to provide an impartial evaluation.
65Finally, on April 21, 2023, Egan produced a second appraisal report on the fair market value of 1220 Surrey as at March 31, 2023. He was of the view that, as of this date, the property was worth $690,000. This is $70,000 less than in January 2022, because the local residential real estate market had cooled.
66Based on the appraisal reports and their evidence at trial, I found Egan’s appraisals more robust and reliable than Beauregard’s appraisals,
67I find that 1220 Surrey should have been appraised as a duplex as opposed to a single family dwelling. Both appraisers’ reports cited information obtained by the Municipal Property Assessment Corporation and GeoWarehouse, an internet site that provides information on real estate. The MPAC Code associated with the property, 332, is used for dwelling that are typically a duplex, that is, “a residential structure with two self-contained units”. A GeoWarehouse report generated on May 20, 2020 also characterized 1220 Surrey as a duplex. On cross-examination, Egan explained that the non-conformity of a unit to the Fire Code would not change this characterization.
68On the stand, Beauregard acknowledged that he never went into the basement and that he was not familiar with the Fire Code requirements for a separate unit. He nevertheless maintained that the basement unit could not be considered a separate residence. This was not persuasive.
69Egan’s explanation for his calculation of adjusted values for comparable properties were sound, in my view. He and Beauregard considered the selling price of two other houses on Surrey Avenue. They had sold for between $549,000 and $727,000 within the preceding six months. Egan adjusted these values upwards, largely to reflect that 1220 Surrey had a basement apartment and a garage while the neighbouring properties did not. This was appropriate.
70Egan testified in a low key and painstaking way. He acknowledged that his lack of access to the interior of the house. I nonetheless found his appraisals to be more thorough than those prepared by Beauregard.
71Beauregard’s evidence at trial was somewhat inconsistent. His reaction to Egan’s January 14, 2022 appraisal, at the time he saw it, suggests that they were not very far apart. In an email to Mario in June 2022, Beauregard expressed the view that Egan’s $750,000 appraisal seemed close to $50,000 too high, but “if renos were completed that could explain some of it”. As already mentioned, Beauregard acknowledged at trial that he now knows that the renovations had in fact occurred. Despite this, Beauregard stood by his $580,000 appraisal, even though it is substantially lower than Egan’s appraisal, and even though Beauregard expressed the view that Ottawa property values did not increase from 2022 to 2023.
72I conclude that the fair market value of 1220 Surrey as of early 2023 was $690,000 rather than $580,000, and that Egan’s evidence was generally more reliable than Beauregard’s evidence.
(3) Should Mario be ordered to provide an accounting of his administration of Pasqualina’s property before and after her death?
73Susan asks for an order requiring Mario to pass accounts for the period of July 1st, 2018 to April 24, 2020, during which he acted as Pasqualina’s power of attorney for property. She also asks that he pass accounts for Pasqualina’s Estate from April 24, 2020 onwards, during which she contends that Mario acted as de facto trustee or trustee de son tort.
74Paul states that he has no concerns about Mario’s handling of Pasqualina’s money prior to her death or his handling of Estate funds since April 24, 2020. He does not explain why he has no concerns, given that he has apparently never accessed Pasqualina’s Accounts nor received any bank statements. Paul also says he is aware of problems that Mario had with tenants in the basement apartment and that he supports Mario’s decision to cease renting the unit out. Paul again does not indicate the source of his awareness or the basis for his belief that Mario made sound decisions. I infer that he is relying entirely and uncritically on what his brother tells him. Based on various comments in his affidavit, he, like Mario, is hostile towards Susan and imputes her with improper motives. There is nothing improper about her request for accountings from Mario or her refusal to agree to his appointment as Estate trustee in the circumstances of this case. I accordingly give Paul’s opinion on Mario’s handling of Pasqualina’s finances and the Estate no weight.
75I find that Mario has failed to provide a meaningful accounting of his management of Pasqualina’s property prior to her death or of the Estate’s property after her death.
Mario’s failure to account for his management of Pasqualina’s property prior to her death
76Based on records produced at trial, Account 1191, the savings account on which Pasqualina, Mario, and Paul were joint accountholders, had $60,890 in it on July 12, 2018. There was a further deposit of $9,236 into the Account on October 19, 2018. At Pasqualina’s death, over $42,000 had been withdrawn or transferred out, leaving a balance of about $28,900. I find that Mario was the only person making withdrawals and transfers from the Account during this period. He has not provided any accounting.
77As of June 1st, 2018, Account 5625, the joint chequing account, had a balance of $24,500. There was a transfer of $20,000 to the Account in December 2019 from Mario’s personal account. At Pasqualina’s death there was $15,034 in Account 5625. Pasqualina was receiving about $2,300 per month in pension, Old Age Security, Canada Pension Plan, and other monthly benefits during this period. She was in the hospital from September 2018 to March 2019. From March 2019 to April 2020, she was in long term care, where her assisted care expenses were $2,500 per month. This means that, for the 20 month period before Pasqualina’s death, she would have received $46,000 in benefits from which she had to pay $32,500 for long term care. Mario has not explained what happened to the balance of funds.
78In his out-of-court cross examination, Paul testified that Pasqualina had a third account at CIBC that was opened in June 2018. Mario has not disclosed any information or records about this account. He has never even provided a listing of Pasqualina’s assets at her death. As mentioned earlier, he has not explained what happened to the rent he received for the basement apartment from September 2018 to April 24, 2020.
79Mario has produced a chart of expenses he has purportedly incurred on behalf of Pasqualina or her Estate since September 2019. These expenses total $146,396.72. Some of the expenses were not actually incurred, and some of them were expenses for which Mario should not be reimbursed. Mario’s evidence on the expenses was generally incomplete and sometimes clearly unreliable.
80Many of the entries in the chart are not supported by receipts or invoices. Mario admitted in cross-examination that he did not, in fact, pay someone $5,441 for painting or $5,500 for plastering. He obtained estimates for some of this work then did it himself. This admission is particularly troubling because, in his May 20, 2022 affidavit, Mario affirmed that he had incurred all of the expenses on the chart. Given Mario’s admission that at least two entries are false, I would not be persuaded of the chart’s accuracy without corroborating records.
81The chart includes expenses that Mario admits were supposed to be paid using the money in the joint bank Accounts. He testified that his parents told the bank manager when the Accounts were opened that the money in them was to be used for items such as taxes and burial expenses. The chart includes expenses for Pasqualina’s funeral, burial, and gravestone totaling over $29,000. Based on Mario’s own evidence, he is not entitled to be reimbursed for these expenses.
82The chart also includes expenses incurred between September 2018 and March 2023. During the first 19 months of this period, Mario was administering Pasqualina’s property on her behalf, using her money in the joint Accounts. Mario admitted in cross-examination that Pasqualina did not give him the money in the Accounts when he became the joint Accountholder on them. She put him on the Accounts so he could assist her in managing her finances. As Mario testified at trial: “It wasn’t a gift, it was a job.” He therefore has no claim for compensation for amounts he spent from the Accounts during this period, which total just over $34,000.
83The chart includes items that clearly benefitted Mario personally but added nothing to the value of the Estate, in that they did not increase or maintain the value of 1220 Surrey. This includes the costs of retaining Beauregard for the first property appraisal as at October 2019, which served no purpose ($621.50); and a vet bill for Pasqualina’s cat, which Mario apparently decided to keep ($481.51).
84Finally, there were unexplained transfers to Mario’s personal accounts totaling $4,000 in late 2019 and early 2020. During his cross-examination on June 2, 2022, when asked if he paid himself from the joint Accounts for the painting and plastering work he had done at 1220 Surrey, he said “Absolutely, that’s exactly what I did”. At trial, Mario denied that this admission should be relied on. I see no reason why not.
85The exact amounts that Mario withdraw from the Accounts to pay for Pasqualina’s legitimate expenses or to increase the value of her property cannot be determined without an accounting. It is clear, on the evidence before me, that Mario used some of the money in the Accounts for his own expenses, in breach of his obligations as a power of attorney.
86I conclude that Mario should, within 90 days of this judgment, pass accounts with respect to his management of Pasqualina’s property from June 2018 to her death on April 24, 2020.
Mario’s management of Estate property
87I find that Mario is a trustee de son tort. A trustee de son tort is a person who is not appointed a trustee, but who takes upon themself to act as such by possessing and administering trust property: Chambers Estate v. Chambers, 2013 ONCA 511, at paras. 75 and 76, and the cases cited in support. Such a person shall be required to account for their administration of property held in trust, such as property of a person who has died but in respect of whom no estate trustee has been appointed.
88Pasqualina’s assets at the time of her death are unknown because Mario has never produced a list of them. The property that is known are the two Scotiabank Accounts and 1220 Surrey.
89I find that Mario should account for his management of rent received for the basement apartment at 1220 Surrey. At trial, he admitted that he received rent after Pasqualina’s death. He has not accounted for these funds or how they were used.
90At Pasqualina’s death, there was a total of almost $44,000 in the two Scotiabank Accounts. Mario contends that he is not required to account for this money because the Accounts became his when Pasqualina died. Mario and Paul were joint accountholders with Pasqualina, with a right of survivorship.
91I find that the funds in the Accounts were subject to a resulting trust, and that Mario has failed to rebut the presumption that the funds in them should be returned to the Estate on Pasqualina’s death.
92In Pecore v. Pecore, 2007 SCC 17, [2007] 1 SCR 795, the Supreme Court of Canada addressed the situation where an elderly parent makes an adult child a joint accountholder. The Court held, that, if the child has not contributed money to the account or transferred anything of value to the parent in return for being added to the account, the money in the account is presumptively subject to a resulting trust, that is, it is presumed to remain for the unique benefit of the parent. When the parent dies, the child might have legal title to the balance of the account through a right of survivorship, but they must show that they also have an equitable right to keep the money. Unless the child can prove that the parent intended to give them the right to keep the balance in the account, the money belongs to the parent’s estate.
93I find that the Scotiabank Accounts are presumptively subject to a resulting trust. I find that the money initially in the Accounts came from Pasqualina. There is no evidence that Mario or Paul ever gave Pasqualina anything of value in return for being made joint accountholders. There is no evidence that Mario ever deposited any of his own money into the Scotiabank Accounts while Pasqualina was alive, with one exception. This exception was an amount that he deposited to reimburse Pasqualina for money he had withdrawn earlier.
94Aside from interest, there was only one deposit recorded in Account 1191 after July 2018, an amount of $9,000 deposited in October of that year. Mario testified that Paul made this deposit on his mother’s behalf, and that this money was the life insurance benefit payable to Pasqualina on Annunziato’s death.
95The situation with Account 5625 is more complex, but the bottom line is that there is no evidence that any of the money deposited into it was from Mario, except for the $20,000 he transferred into it in December 2019 to reimburse funds he had withdrawn earlier for his own purposes. The money regularly deposited to Account 5625 between March 2019 and Pasqualina’s death in April 2020 consisted of amounts she received as government benefits, tax refunds and pension benefits. Mario transferred some funds to Account 5625 from Account 1191. There were three transfers totaling $12,500 from another account ending in 1151, the ownership of which was not established at trial. Mario testified that he had two bank accounts, one of which ended in 3829 and the other 2688. I therefore infer that these transfers did not come from him. Finally, there was a deposit of $10,000 in August 2019, the provenance of which is unknown.
96Mario has not rebutted the presumption of a resulting trust. As already mentioned, Mario admitted at trial that Pasqualina did not intend to give him the money in the Accounts in July 2018, when he was added as a joint accountholder. There is no evidence suggesting that Mario mischaracterized the situation.
97The 2018 applications for the joint Accounts show that Paul and Mario had a right of survivorship. In Leclerc v. Rocheleau, 2016 ONSC 6396, at paras. 37 to 42, the court held that this type of record does not constitute evidence of an intent to give an accountholder beneficial ownership of funds. It does not satisfy the requirement in the common law and at s. 13 of the Evidence Act, RSO 1990, c. E.21, that Mario must provide corroborating evidence that Pasqualina intended to give the money in the Accounts to Mario: Foley v. McIntyre, 2015 ONCA 382, at para. 29.
98Mario argues that Pasqualina’s Will shows she intended to gift him with the balance of the Accounts on her death, because it provides that:
Subject to any evidence of the expression of a contrary intention exhibited between the date of this my Will and the date of my death, it may be assumed that it is my intention that my interest in the beneficial ownership of any property to which I hold legal title, jointly with the right of survivorship with some other person, is, upon my death, to become the absolute property of the survivor to the legal title.
99I reject this argument, for two reasons.
100First, Pasqualina executed her Will in 2006. In Kent v. Kent, 2020 ONCA 390, the Ontario Court of Appeal upheld a motion judge’s finding that an adult child had not rebutted the presumption of a resulting trust with respect to property that they held jointly with their parent at the parent’s death. The Court noted that in Pecore, at para. 56, the Supreme Court had reiterated the traditional rule that evidence adduced to show the transferor's intention at the time of the transfer ought to be "contemporaneous, or nearly so" to the transaction. A will made years prior to the transfer might provide context for it, but it could not constitute evidence of the transferor’s intent at the time of the transfer: Kent, at para. 37. Similarly, in this case, I do not find that a term in Pasqualina’s Will, executed twelve years before the establishment of the joint Accounts, can be used to show that she intended to gift the balance of the Accounts to Mario and Paul.
101Second, the language in Pasqualina’s Will above is qualified. It foresees the possibility that someone might become a joint property holder with her without acquiring a beneficial interest in the property. This would be evidenced by “the expression of a contrary intention” exhibited between the date of her will and her death. This is in fact what happened. Mario and Paul became joint accountholders with their mother on her Accounts, but Mario admits that she did not intend that they would acquire a beneficial interest.
102I accordingly conclude that the funds remaining in the Accounts at Pasqualina’s death belonged to her Estate, not to Mario and Paul. As he was managing the Accounts, Mario must provide an accounting for the funds and reimburse to the Estate any money not used to pay the Estate’s legitimate creditors or for the maintenance, overhead, and general improvement of 1220 Surrey.
103Finally, Mario must disclose whether Pasqualina had other property at the time of her death, including but not limited to funds in other bank accounts, and account for any income received and funds spent since her death.
104I conclude that Mario should, within 90 days of this judgment, pass accounts with respect to his management of property belonging to Pasqualina at the date of her death on April 24, 2020 to the date of this judgment.
(4) Should Mario be ordered to pay occupancy rent and, if so, how much?
105Susan contends that Mario should be required to pay occupancy rent for 1220 Surrey from September 2018 forward. Mario takes the position that no rent is owed because he has paid for repairs to the property and ongoing expenses that offset any reasonable rent.
106Occupation rent is an equitable and discretionary remedy. The occupation of a property belonging to an estate, to the detriment of other beneficiaries, may justify an order to pay occupation rent: Cormpilas v. Ioannidis, 2020 ONSC 4831; BNS v. Charles, at para. 26.
107To establish that Mario should pay rent to the Estate for his use of 1220 Surrey, Susan must show that, while Mario has lived on the property:
a. He has been enriched by the rent he would have otherwise had to pay for it; b. The Estate has been correspondingly deprived of rent it would have otherwise received; and c. The absence of a juristic reason for Mario’s enrichment and the Estate’s deprivation.
108I find that Mario has been enriched through his rent-free occupation of 1220 Surrey. On the evidence before me, I am unable to find that he has incurred expenses that offset the rent that the Estate reasonably could have charged to a tenant living there. The accounting I have ordered may reveal that Mario used some of his own money to cover utilities, home insurance, and property taxes for 1220 Surrey since Pasqualina’s death. He may also be able to prove that he personally paid for some cosmetic upgrades that enhanced the resale value of the property, such as new flooring, bathroom upgrades, air conditioning, a garage door, and landscaping. As matters stand, however, he has not proved that he used his own funds for these expenses. Insofar as there is evidence about these expenses, it indicates that he used money in the Accounts that belonged to the Estate.
109The Estate has been deprived of rent that Pasqualina or it could have collected while Mario has been occupying 1220 Surrey. In January 2022, Egan concluded that the Estate could have charged $1,300 per month in rent for the main floor unit at 1220 Surrey, and $1,100 for the basement apartment. In April 2023 and at trial, he appraised the rental value of the two units at $1,500 and $1,200 respectively. There is no evidence about market value rent prior to 2022.
110Finally, there is no juristic reason for Mario to live at 1220 Surrey, rent-free, once the deadline for him to exercise his option to purchase the property passed in late October 2020. He arguably should have vacated the property much earlier, given that he did not even try to comply with the terms of Pasqualina’s Will by retaining an appraisal of the fair market value of 1220 Surrey at a date after her death. I would, however, give him the benefit of the doubt on this issue.
111Mario is therefore liable for occupancy rent for the main floor of the property from November 2020 to present. He is not liable for occupancy rent for the basement apartment during the period that the basement unit was occupied by tenants who paid or were contractually required to pay rent. He is, however, liable for occupancy rent for the basement apartment once he ceased to rent it.
112In the absence of evidence about market value rents prior to 2022, I find it appropriate to use reduced figures than those proposed by Egan for the period from March 2019 to December 2021. I accordingly find that Mario is liable for occupancy rent, as follows:
For the main floor of 1220 Surrey: November 2020 to December 2021, $1,200 x 13 months: $15,600 January to December 2022, $1,300 x 12 months: $15,600 January to August 2023, $1,500 x 8 months: $12,000
For the basement apartment: January to December 2021, $1,000 x 12 months: $12,000 January to December 2022, $1,100 x 12 months: $13,200 January to September 2023, $1,200 x 8 months: $9,600
Total: $78,000
113Should Mario fail to repay this amount in full to the Estate, this debt shall be accounted for when the residue of the Estate is distributed.
114For as long as Mario remains in occupancy of 1220 Surrey after August 31, 2023, he shall be liable for an additional $2,700 per month in rent for the upper and lower units. If Mario has not paid all occupancy rent owed by the time the residue of the Estate is distributed, the balance owed shall again be deducted from his share.
(5) Who should be appointed Estate trustee?
115A testator’s choice of estate trustee should not be set aside lightly. Mario did take some steps to administer Pasqualina’s Estate. He arranged for her funeral and filed an income tax declaration on her behalf. He has maintained 1220 Surrey, albeit to his own personal benefit.
116Overall, however, Mario has demonstrated a striking lack of understanding or respect for his fiduciary duties as trustee. There are many examples of Mario’s inappropriate conduct, two of which I find particularly disqualifying.
117First, Mario has failed to provide meaningful information to Susan and the court about the Estate’s assets and his management of them. He has defied court orders to disclose some information. Prior to trial, he was twice ordered to answer undertakings, including disclosure of rent he collected for the basement apartment from September 2018 forward and supporting documents. He did not comply with these orders prior to trial. At trial, he acknowledged that he collected a total of $9,800 in rent in 2020, but produced no records, such as records of e-transfers or cash deposits, to substantiate his evidence, nor has he explained how he spent the rent he collected. Mario attempted to bamboozle the court about expenses he incurred. The chart of his alleged expenses included expenses that he admitted he did not incur, supported by documentation (an “invoice” for painting services) that was actively misleading.
118Second, Mario failed to maximize the Estate’s value, by remaining in 1220 Surrey without paying any occupation rent and by allowing his daughter to occupy the basement apartment without paying any rent. Based on Egan’s evidence, Mario could have generated $36,000 in rent for the Estate between January 1st, 2021 and June 1st, 2023.
119Over the course of the litigation, Mario has presented a litany of excuses for not re-letting the basement apartment after December 2020: the apartment was not legal, Susan was suing him, no Estate trustee had been appointed, and he wanted to keep the apartment vacant in case he sold the house. These explanations do not hold water. Susan did not begin any legal proceedings until 2022, more than a year after the last paying tenant left. Mario did not get the Bottriel report mentioning the absence of a Fire Door until months after that, in November 2022. If Mario were genuinely concerned that the basement apartment was unsafe, he would surely not allow his daughter and granddaughter to live there.
120I find that Mario did not rent the basement apartment out because he decided to let his daughter live there for free. Mario attempted to justify this by saying that his late parents would never have charged family members rent. I do not accept that this is really the reason for his conduct. The truth is that Mario believes that 1220 Surrey is his property and that he does not need to account to Susan (or anyone else) for decisions he has made with respect to it. As he stated in cross-examination: “This is my asset. This is not an estate asset … As far as I’m concerned, it belongs to me”.
121Mario is wrong. 1220 Surrey belongs to the Estate, not to him. As the trustee de son tort, he had a fiduciary duty to place the interest of beneficiaries ahead of his own interests, and to account for his management of the Estate’ property. This includes his decision, made in his self-interest or that of his family, to forego rent that could be charged for the use of the basement apartment, and to live in the main floor unit without himself paying rent to the Estate.
122I have no confidence that Mario would, going forward, execute the duties as Estate trustee consistent with his fiduciary duties. Based on his conduct to date and his evidence at trial, I conclude that he would continue to prefer his own interests over those of the beneficiaries of Pasqualina’s Estate, in particular Susan.
123Susan proposes that Travis Webb be appointed the Estate Trustee during Litigation, for which he would be paid $350 an hour. Webb has consented to the proposed appointment. Mario argues that there is no need to appoint an Estate Trustee during Litigation, as the only thing left to do is to the sell the house, and Webb’s appointment will cost the Estate money that would otherwise be divided between Mario, Paul and Susan.
124Given the conclusions I have reached on other questions in litigation, I find that a trustee should be appointed, and that Travis Webb is an appropriate choice.
Should Mario be required to vacate 1220 Surrey so that it can be sold?
125I find that an order for the sale of 1220 Surrey is appropriate in the circumstances. The option to purchase has lapsed and it must be sold so that its value can be distributed to Pasqualina’s residual beneficiaries. I accordingly direct the newly appointed Estate Trustee During Litigation, Travis Webb, to put 1220 Surrey on the market within 60 days of his appointment, at a minimum price of $690,000, its fair market value as appraised by Egan in 2023.
126Mario has no right to remain in possession of the property. Given his history of failing to pay rent and comply with court orders, I am ordering him to vacate the property within 60 days of this judgment. Mario is required to pay occupancy rent going forward, beginning September 1st, 2023, in the amount of $1,500 for the main floor unit and $1,200 for the basement apartment. If he fails to pay the first month’s rent on September 1st, 2023 and the second month’s rent on October 1st, 2023, the Estate Trustee may evict him on 14 days notice, without the necessity of any further order from this court.
Disposition
127Mario’s Application is dismissed. Susan’s Application is granted in part.
128If Susan, Mario, and Paul are unable to agree on costs, they shall each serve and file a cost outline by September 15, 2023. Each outline shall be no longer than three pages but shall attach other documents relevant to the court’s determination on costs, including dockets or detailed invoices and records of settlement offers.
Justice Sally Gomery Released: September 25, 2023
Appendix
Paragraph 113 previously stated:
Should Mario fail to repay this amount in full to the Estate by the time 1220 Surrey is sold, any balance he owes shall be deducted from his share of the residue of the Estate.
Paragraph 113 now reads as follows:
Should Mario fail to repay this amount in full to the Estate, this debt shall be accounted for when the residue of the Estate is distributed.
Paragraph 114 previously stated:
For as long as Mario remains in occupancy of 1220 Surrey after August 31, 2023, he shall be liable for an additional $2,700 per month in rent for the upper and lower units. If Mario has not paid all occupancy rent owed by the time the residue of the Estate is distributed, the balance owed shall again be deducted from his share.
Paragraph 114 now reads as follows:
For as long as Mario remains in occupancy of 1220 Surrey after August 31, 2023, he shall be liable for an additional $2,700 per month in rent for the upper and lower units. If Mario has not paid all occupancy rent owed by the time the residue of the Estate is distributed, this debt shall be accounted for when the residue of the Estate is distributed.