COURT FILE NO.: CV-21-0000150-0000 and COURT FILE NO.: CV-20-00004597-0000 DATE: 2024 02 20
SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No. CV-21-0000150-0000
RE: DONA JEAN MURPHY, personally and in her capacity as Estate Trustee for the Estate of William Harper, deceased, Applicants
-and-
ERIN FORSYTH and NATIONAL BANK FINANCIAL INC., Respondents
Court File No. CV-20-0004597-0000
AND RE: ERIN FORSYTH
-and-
DONA JEAN MURPHY, ROBIN HARPER-SLADE and NATIONAL BANK FIANCIAL INC.
BEFORE: Fowler Byrne J.
COUNSEL: David M. Smith and Mark Lahn, for Dona Murphy, and the Estate of William Harper, in both actions dsmith@hullandhull.com mlahn@hullandhull.com
Theodore Nemetz, for Erin Forsyth, in both actions nemetzlaw.@rogers.com
Ziad Yehia and Laura Thistle, for the National Bank Financial Inc., in both actions Zyehia@blg.com LThistle@blg.com
HEARD: October 24, 2023
E N D O R S E M E N T
Fowler Byrne J.
[1] There are two applications before me, each pertaining to the Estate of William R. Harper (“the Estate”).
[2] In the first application, commenced by Erin Forsyth (“Forsyth”), the following claims remain outstanding:
i. An order that she is a named beneficiary of the RRSP of William R. Harper (“the Deceased”), which is held with the National Bank Financial Inc. (“NBF”);
ii. An order that the NBF deliver this RRSP to Forsyth; and
iii. An order that the Dona Murphy (“Murphy”) be stopped from interfering with the assets of the Deceased where Forsyth is the named beneficiary.
(“Forsyth Application”)
[3] In the second application, commenced by Murphy, the following claims remain outstanding:
i. A declaration that the Estate of William R. Harper (“the Estate”) is the beneficiary of the RRSP; or in the alternative, if Forsyth is the beneficiary, an order for directions regarding Murphy’s challenge to the beneficiary designation on the basis of undue influence, lack of capacity or other such grounds; and
ii. An order permitting Murphy to instruct and authorize NBF with respect to assets of the Deceased held with that institution; and
(“the Murphy Application”)
I. Family Structure
[4] The Deceased died on September 5, 2019.
[5] As of the date of his death, Murphy was the Deceased’s wife. They had been separated since 2014. They had signed Minutes of Settlement on July 31, 2019, but they had not yet obtained a divorce. The Minutes of Settlement indicated that they were signed in settlement of all claims between the parties but makes no specific reference to the parties’ estates.
[6] While together, the Deceased and Murphy had one child – Robin Harper-Slate (“Harper-Slate”). Harper-Slate has sworn an affidavit supporting the position of Murphy.
[7] Forsyth is Murphy’s daughter from a previous relationship. Forsyth indicates that she was raised by Murphy and the Deceased, and that the Deceased was the only father figure she has ever known. She lived with the Deceased and Murphy until she left for college, returning during the usual breaks at school. The Deceased never formally adopted Forsyth. She agrees that her relationship with the Deceased improved upon her parent’s separation in 2014.
[8] By contrast, Murphy states that Forsyth and the Deceased’s relationship throughout her childhood was strained. In 1991, when Forsyth was 14 years old, she started running away from home, off and on, which continued until she was in her 30s. Forsyth did not reconnect with the Deceased until 2014, following the Deceased and Murphy’s separation. Forsyth sided with the Deceased during the separation proceedings. Murphy believes that the Deceased lack capacity due to substance abuse, which she believes Forsyth facilitated.
[9] The parties agree that they were unable to locate a will for the Deceased, and thus he died intestate. As such, Murphy and Harper-Slate are the beneficiaries of the Estate.
[10] On January 22, 2021, an order was made discharging an Objection filed by Forsyth and permitting Murphy to be appointed the estate trustee. That appointment was granted on February 3, 2021.
II. Assets at Issue
[11] The parties agree that as of the date of the Deceased’s death, he held three accounts at NBF:
i. a Canadian cash account bearing account number 05H2TA6 – A with a value of $7911.47 as of June 30, 2023 (“Cash Account”);
ii. a Canadian Registered Retirement Savings Plan bearing account number 05HTA6 – S with a value of $177,829.88 as of June 30, 2023 (“RRSP”); and
iii. a Canadian Life Income Fund bearing account number 05HTA6 – P with a value of $296,332.55 as of June 30, 2023 (“LIF”).
[12] All these accounts continue to be invested and their value has increased.
III. Issues
[13] The issues to be determined are as follows:
i. Is Forsyth the beneficiary of the Deceased’s RRSP?
ii. If Forsyth is the beneficiary of the Deceased’s RRSP, was this beneficiary designation procured by the undue influence of Forsyth? and
iii. If Erin Forsyth is the designated beneficiary of the RRSP, is such beneficiary designation invalid having been made by the Deceased when he lacked the requisite capacity to do so?
[14] These issues were ordered to proceed by Justice Mandhane on January 22, 2021. This order only refers to the RRSP, and not the RIF. Nonetheless, in her submissions, Forsyth argues that she is also the proper beneficiary of the RIF. Murphy takes the position that the Disputed Beneficiary Designation Form does not apply to the LIF. Murphy and the NBF take the position that the legislation does not permit Forsyth to be the beneficiary. Accordingly, I have identified a further issue is to be determined:
iv. Should I determine who is the beneficiary of the LIF, and if so, who is that beneficiary?
IV. Background
[15] Mr. Stephen Ford was the Deceased’s financial advisor at NBF as of the time of his death. He had been the Deceased’s financial advisor for approximately five years and had been his financial advisor in his previous position at CIBC Wood Gundy. When Mr. Ford moved from CIBC Wood Gundy to NBF, the Deceased moved his business with him.
[16] On November 21, 2017, the Deceased executed a beneficiary designation form for the RRSP indicating that the Estate was the designated beneficiary. The Deceased also executed a beneficiary designation form for the RIF on September 25, 2018, which also designated the Estate as the beneficiary. The Cash Account does not contain a beneficiary designation.
[17] At the centre of this dispute is a subsequent beneficiary designated form dated October 29, 2018. The beneficiary designation form is a two-page document. Unfortunately, no party was able to locate the first page. On the second page the designated beneficiary is “Erin S. Harper-Forsythe” and the printed beneficiary “Estate” is struck out (“Disputed Beneficiary Designation Form”).
[18] Mr. Ford stated this form (that is to say the original two pages) would have been prepared at his instruction and sent to the Deceased for signing. It would have been prepared with “Estate” as the beneficiary. He does not recall why it was prepared and sent at this time.
[19] Mr. Ford was not present when it was signed. It would have been mailed out around September 5, 2018, to be signed by the Deceased. He received the new form for the RIF wherein the Deceased designated the Estate as the beneficiary, which the Deceased signed on September 25, 2018. According to Mr. Ford’s recollection, a beneficiary page must have been missing, because Mr. Ford wrote a Post-it note to himself as such. He assumes he would have called the Deceased and asked about it. When Mr. Ford received the new form, being the Disputed Beneficiary Designation Form, he saw that the beneficiary was changed to Erin S. Harper Forsythe, and it was signed October 29, 2018.
[20] As was his practice, when Mr. Ford received the Dispute Beneficiary Designation Form, he would have sent the original white copy to the appropriate department at the NBF, and he kept a blue copy for his files. He has no record of the exact day that he did that. He has no recollection of noticing that the first page was missing when he received it. He did not follow up with the Deceased about the change of beneficiary but accepted it as his wishes. Mr. Ford had communicated with the Deceased on numerous occasions prior to his death and he knew that the Deceased wanted Forsyth to benefit from his estate. Given the pre-printed form used at that time, Mr. Ford believes that the Disputed Beneficiary Designation Form had to be signed prior to June 11, 2019.
[21] For reasons unknown, the new beneficiary designation naming Forsyth was never received or processed by the appropriate department at NBF. Evidence has been provided by an employee of the NBF as to the proper procedure to be followed by a financial advisor when they receive a beneficiary designation. It does not appear that Mr. Ford and/or his staff followed that procedure or else the new form would have been processed. As a result, as of the date of death, all NBF statements and records indicated that the Estate remained the beneficiary of the RRSP. Mr. Ford said he never noticed this in his records.
[22] After the Deceased’s death, NBF conducted a search of its systems and has not been able to locate any copy of the Disputed Beneficiary Designation Form. In NBF’s internal records, it shows that the Estate is the beneficiary of the RRSP, and for the LIF, their records indicate “as per legislation or Designation/Estate”.
[23] As indicated, Murphy and the deceased separated in 2014. Divorce proceedings were initiated in 2018.
[24] Forsyth has produced evidence that the Deceased was in communication with a lawyer in June 2019, wherein he was contemplating leaving his entire estate to Forsyth. His lawyer provided a draft will that she recommended he reproduce in holographic form before a more up-to-date formal will could be drafted and signed. On June 19, 2019, his lawyer emailed him and told him that if he did not sign a new will:
i. Murphy would be entitled to the first preferential share of $200,000 of his estate;
ii. The residue of his estate (after payment of the first $200,000) would be divided equally between Murphy and Harper-Slate (assuming that he never formally adopted Forsyth). If he did adopt Forsyth, then each of them would get 1/3 of the residue; and
iii. Forsyth would receive the RRSP by virtue of being the named beneficiary.
[25] Minutes of Settlement in the matrimonial proceedings were signed on July 31, 2019. In those minutes of settlement, Murphy was to pay the sum of $150,000 to the Deceased in full and final satisfaction of all claims between the parties, including but not limited to claims under Part I of the Family Law Act, retroactive adjustments and costs. Neither party was obligated to pay spousal support to the other. The Deceased was to file for divorce. There was no clause pertaining to the estate of either party, or what would happen upon either of their deaths. Murphy did not renounce her ability to act as the Deceased’s executor nor did she renounce any interest in the Estate.
[26] Unfortunately, within a month of signing these Minutes of Settlement, the deceased suffered a stroke and was taken to the hospital. He died on September 5, 2019. As result, the Deceased never had an opportunity to obtain a formal divorce. As well, Murphy never paid the sum of $150,000.
[27] Following the Deceased’s death, Murphy contacted Mr. Ford as she understood that the Deceased and Mr. Ford were co-executors in the estate of the Deceased’s aunt. She further understood that the Deceased was a beneficiary of his aunt’s estate and she wanted to know the status of this. Through a number of conversations with Mr. Ford, she learned that there were “beneficiaries” as opposed to a “beneficiary” of the deceased’s investments with the NBF.
[28] Murphy made some inquiries of NBF as to the Deceased portfolio value, and any beneficiary information of the RRSP, in order to make an application to be appointed estate trustee. The NBF would not release the information to her.
[29] In or about September 13, 2019, Forsyth had an appointment with Mr. Ford and brought with her a white copy of the Disputed Beneficiary Designation Form. He recalls checking his file, and because he had a blue copy, he concluded that he had already received it earlier. He then immediately contacted the funeral home and asked for a death certificate.
[30] As indicated, Murphy eventually obtained a Certificate of Appointment as an Estate Trustee Without a Will for the Estate. The funds remain held by the NBF and the parties have asked for a resolution of their dispute by way of this long motion.
[31] Forsyth states that it was always her understanding that she would be the beneficiary of the RRSP from October 2018. The Deceased was separated from his wife and estranged from Harper-Slate at the time of his death. Forsyth assisted the Deceased through his family law proceedings. It was in the course of these proceedings, in October 2018, that the Deceased changed the designation on his RRSP to her.
[32] Murphy acknowledges that she remains indebted to the estate in the sum of $150,000. She is content that her preferential share of the Estate be reduced by this sum. She then argues that I should not accept the Disputed Designated Beneficiary Form. After the reduced preferential share is paid to her, she asks that the remainder of the Estate be divided equally between her and Harper-Slate.
V. Analysis
1. Is Forsyth the Beneficiary of the RRSP?
[33] Pursuant to sections 50 and 51 of the Succession Law Reform Act, one may designate a person to receive the benefit of a retirement or pension plan such as an RRSP. It can be done by will or in a separate signed instrument.
[34] It appears that the Disputed Designated Beneficiary Form is such an instrument. What makes this case more difficult is that it appears to be an incomplete form and was not received by NBF in its normal course.
[35] Forsyth has referred to the case of Ray-Ellis v Goodtrack et al., 2021 ONSC 3102. In that case, the deceased has originally named his wife as the beneficiary of his LIRA. After they separated, he signed a new beneficiary designation form, naming his parents as beneficiaries. A photocopy of the new designation was located in the deceased’s personal document, but the original was never located. Despite that, the authenticity of the subject beneficiary document was not in issue. Unfortunately, the bank where the funds were held had not been able to locate this designation form. According to the bank’s records, the deceased’s former wife remained the beneficiary. The ex-wife argued that the new beneficiary form was not valid because it was never sent to the bank and was not in their records. She also submitted that the actions of the deceased show that he never intended to change the beneficiary.
[36] In that case, the court found the SLRA does not require that a beneficiary designation form be registered or even sent to the banking institution. In fact, s. 53 of the SLRA discharges the administrator of the plan upon paying out pursuant to the latest beneficiary designation. As long as the statutory requirements of the beneficiary designation are fulfilled, it does not matter that the original cannot be located by the bank: paras. 32-34.
[37] In Ray-Ellis, the court also considered the evidence that around the time the new beneficiary designation was signed, the deceased had also changed the beneficiary on his other pension plan to his parents, and that around that time, his ex-wife had remarried. The deceased’s LIRA had already been equalized in their divorce proceedings and releases were given with respect to property and any relief under the SLRA.
[38] Accordingly, if I am satisfied that the Disputed Designated Beneficiary Form complies with the SLRA, the fact that it was not located by NBF is of no consequence. What then, is the consequence of having only the second page of the Disputed Designated Beneficiary Form?
i. What Accounts do the Disputed Designated Beneficiary Form refer to?
[39] Forsyth relies on the evidence of Mr. Ford. In his cross-examination, Mr. Ford indicated that he may have used the RRSP form but wrote the account numbers for both the LIF and the RRSP on the first page. He states that his recollection from speaking to the Deceased was that he wanted to leave everything to Forsyth. He believes that the Deceased named the estate as the beneficiary of his LIF in September 2018, but then within the month, re-sent a new beneficiary designation form, for both accounts, on one form, where he changed the beneficiary to Forsyth.
[40] Murphy argues that the signature on the second page, which is in section 4, is directly under a box that is ticked and that refers to an RRSP only. Also, it corresponds to a blank RRSP designation form, that has the first three sections on the first page and starts with section 4 on the second page. This is different from the blank LIF form that was used at that time, which has the first 4 sections on the first page and starts on the second page as section 5.
[41] As it is Forsyth that argues that the Disputed Designated Beneficiary Form relates to both the LIF and the RRSP, she bears the onus of proving this, on a balance of probabilities. In light of the evidence presented, I find that she has not met this onus.
[42] NBF has provided a blank copy of the Application Form that would have been used by the Deceased and Mr. Ford in 2018. The second page of this Application contains the beneficiary designation. The second page of the Application form is identical to the Disputed Designated Beneficiary Form, and I accept that this Application form was the document sent to the Deceased to sign.
[43] As indicated by Mr. Ford, it appears on the first page of the Application, that it could be used for an RRSP or a RIF. The appropriate box would have to be ticked, and the account number inserted. Then, personal information for the client would have to be filled in, such as their address and social insurance number. In section 3, the client can sign if either his RSP or his RIF is to benefit his spouse. Section 4, which we do have a copy of in this case, only refers to a designation with respect to an RRSP, if it is not to be the spouse. There is no spot on this Application Form to specifically address the beneficiary of a LIF, other than the first page, which we do not have.
[44] It also appears that there is a separate Application that can be for an RRSP or a RIF which provides payment instructions. In this case, we have such a form which the Deceased signed September 25, 2018, approximately a month before the Disputed Designated Beneficiary Form was signed. In this form, the Deceased directs that his annual payment is to be paid into his cash account with NBF. Then on page 2, in section 5, there is a spot to designate a beneficiary, other than your spouse.
[45] It is apparent that one month before the Disputed Designated Beneficiary Form was signed, that two different forms would have to be signed to change a beneficiary designation for each account, and in fact Mr. Ford appears to have sent both for signature. The RIF Application, which Mr. Ford used for the LIF was received in or around September 2018. The second page of the RRSP Application form, being the Disputed Designated Beneficiary Form was returned a month later, naming Forsyth as the beneficiary. Even if the first page of the Disputed Designated Beneficiary Form had the LIF number inserted, the LIF is not referenced in any manner on the second page. The beneficiary designation is clearly with respect to the RRSP only. I have no evidence whatsoever that it was also to be for the LIF as well, other than what Mr. Ford indicated.
[46] Mr. Ford’s evidence that there were two account numbers on the first page, is speculation at best. His recollection of the circumstances surrounding receipt of the Disputed Designated Beneficiary Form is not based on a firm recollection of the events, but rather a confident assumption that this was the case, based on conversations he remembers, and on his systems and practices. Unfortunately, I cannot rely on assumptions. I also cannot rely on his systems and practices as they did not appear to work in having the change of beneficiary filed with the bank. For whatever reason, his system, or NBF’s internal procedures did not work in this case.
[47] Finally, I have considered the email sent by the Deceased’s lawyer on June 27, 2019 which appears to confirm that the Deceased advised this lawyer that Forsyth was the beneficiary on the RRSP, with no mention of the LIF.
[48] Accordingly, I find that the Disputed Designated Beneficiary Form relates to the RRSP only.
ii. Is the Disputed Designated Beneficiary Form Valid?
[49] Murphy argues that the Disputed Designated Beneficiary Form is invalid for a number of reasons.
[50] Murphy argues that the Disputed Designated Beneficiary Form is vague, as the first page is missing and that is the page on which the account number is indicated. She also argues that Mr. Ford’s evidence is unreliable and there is no explanation as to why the blue copy in Mr. Ford’s file is different from the copy that Forsyth provided him after the date of death. Murphy also disputes the authenticity of the Disputed Beneficiary Designation Form and finally, that the intent of the Deceased was not clear.
[51] Finally, Murphy argues that by virtue of s. 13 of the Ontario Evidence Act, Forsyth cannot obtain a judgment in her favour on her evidence alone, and that her evidence must be corroborated by some other material evidence. In other words, her evidence that the Deceased wanted her to benefit must be corroborated. Murphy denies that Mr. Ford did that, given his lack of a firm recollection of the events and conversations with the Deceased about his lack of relationship with Harper-Slate.
iii. Discussion
[52] The requirements under s. 51(1) of the SLRA state that a beneficiary designation can be by way of a signed instrument or by will. Under s. 51(2), it states that a designation under a will is effective only if it relates expressly to a plan, either generally or specifically. It does not contain the same requirement with respect to an instrument, presumably because that instrument is assumed to expressly relate to a particular plan.
[53] I do not agree that this designation is vague, if viewed in the context of all the evidence. If I had the first page of this form, with the LIF or RRSP number inserted or not, I am not sure what certainty it would add to the Disputed Designated Beneficiary Form. Clearly, this form was with respect to the Deceased’s NBF’s accounts (which is evident on the first and second pages) and the Deceased only had one RRSP account with NBF and the account number was known. The Deceased’s contact information and social insurance number was known. If he filled out section 3 of the form, it would only have been if he wanted to benefit Murphy. Given what was written on the second page, that does not seem likely.
[54] I make this finding without relying on the evidence of either Forsyth or Mr. Ford but rather on the evidence provided by the NBF. The various forms signed by the Deceased over the years with NBF, indicate that the accounts in issue were well identified. Viewing the blank forms being used at that time confirms that there was not much more to learn from the first page of the Disputed Designated Beneficiary Form with respect to the RRSP, even if the LIF number was included. The form speaks for itself. According to the evidence of NBF, the form used was the proper form to change a beneficiary designation on an RRSP.
[55] While the Disputed Designated Beneficiary Form is sufficient and speaks for itself, I am also confident that it reflects the intentions of the Deceased. In June 2019, the Deceased was advised by an estate lawyer what needed to be done if he wanted Forsyth to inherit his entire estate. There is no evidence that he ever wrote out the holographic will, which was typed up for him to follow and which would have excluded Harper-Slate and Murphy from his Estate. He was advised, and there is no reason to believe he did not understand that, without signing the holographic will, Murphy and Harper-Slate would benefit. He was assured that in these circumstances as well, Forsyth would still benefit from the RRSP, given that he had named her the beneficiary. Despite this knowledge, he took no steps to change his estate in any way in the next few months. While he may have wished to take care of it after his family law proceedings were finalized, he did not do so.
[56] I do acknowledge that the Disputed Designated Beneficiary Form that Mr. Ford had in his file and that presented by Forsyth are different. It appears that they are the same form, but that Mr. Ford’s copy had more information. No one has seriously disputed that the signature on the Disputed Beneficiary Designation Form is that of the Deceased. Mr. Ford indicated that the printing that named Forsyth as the beneficiary was that of the Deceased’s. No other evidence was presented that would contradict that.
[57] While it is evident that Mr. Ford’s copy is more complete, I do not find that this indicates any malfeasance on the part of Mr. Ford or Forsyth. It appears that whatever copy Forsyth had in her possession was not the full copy. It appears that the Deceased added more information before he gave it to Mr. Ford. It also appears that before it was sent to Mr. Ford, the Deceased made an error in Forsyth’s address on the form, changed it and initialed it. The initials are identified by Mr. Ford as those of the Deceased. This evidence was not challenged by the other parties.
[58] Accordingly, I find that the Disputed Designated Beneficiary Form was a proper reflection of the Deceased’s intentions. He signed a form in October 2018 making Forsyth the beneficiary of the RRSP only. He was aware as late as June 2019, that without doing anything else, that would be the extent of Forsyth’s inheritance. Whether intentionally, or because he never got around to it, that was the state of affairs upon his death.
[59] Accordingly, I find that the Disputed Designated Beneficiary Form, absent the first page, is sufficient in these circumstances to designate as a beneficiary for the RRSP as contemplated by s. 51 of the SLRA.
2. Was there Undue Influence?
[60] The onus to prove that the Deceased was under undue influence when he signed the Disputed Beneficiary Designation Form, lies with Murphy: Stewart v. Nash (1998), 65 O.R. (2d) 218 (H.C.), at para. 19.
[61] No evidence was presented at this hearing to show that Forsyth exerted any undue influence on the Deceased, other than a general allegation. It is alleged, and Forsyth agrees, that she only became more involved in the Deceased’s life after 2014. The growth of a relationship does not equate to undue influence.
[62] Accordingly, I find that there has been no undue influence exerted upon the Deceased when he signed the Disputed Beneficiary Designation Form.
3. Did the Deceased have the Requisite Capacity?
[63] With respect to wills, a deceased is presumed to have the capacity to execute a will. This presumption is only rebutted if there are suspicious circumstances. If the suspicious circumstances relate to the deceased’s mental capacity, then the propounder must establish the requisite capacity: Vout v. Hay, [1995] 2 S.C.R. 876, at paras. 26-27.
[64] This rule has been applied to other instruments that take effect only upon the death, such as an insurance policy: Stewart, at para. 16; David v. TransAmerica, 2015 ONSC 5192, 11 E.T.R. (4th) 128, at paras. 94-97. I see no reason why it should not also apply to a beneficiary designation for an RRSP.
[65] Circumstances that give rise to suspicious circumstances include the circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator, or circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout at para. 25.
[66] I do not find the circumstances in this case to be suspicious. No evidence was presented with respect to suspicious circumstances, other than the accusations of Murphy. Forsyth was a part of the Deceased’s life for over 4 years prior to his death. He and she were close. He was aware that she would not be entitled to anything if he died without making changes to his will or beneficiary designations. It makes sense that he would have his estate reflect his relationship with the step-daughter he currently sees, but also include his biological daughter, with whom he previously had a relationship, despite their current animosity. It reflects the importance of both daughters in his life.
[67] Accordingly, I find no evidence of suspicious circumstances, and therefore the Deceased is presumed to have the capacity to sign the Disputed Designated Beneficiary Form.
4. Who is the Beneficiary of the LIF?
[68] Unfortunately, there is little evidence before me in order to make this determination. This may be due to the fact that it wasn’t contemplated as an issue in Justice Mandhane’s order and was not addressed until the facta were drafted.
[69] None of the parties addressed this issue in their affidavits. At the time the evidence was assembled, the parties appeared focused only on whether the beneficiary of the RRSP was Forsyth. Whoever is the beneficiary of the LIF, I have found that it was not Forsyth.
[70] I am also concerned that this dispute is between Murphy and Harper-Slate. They are currently being represented by the same counsel in these applications, which suggests a conflict of interest. While Harper-Slate swore an affidavit that she agrees with the content of Murphy’s affidavit, that she received independent legal advice before doing so, and further states that if a conflict arises, that she waives that conflict, Murphy’s affidavit doesn’t address the LIF and whether it should go to Murphy or the Estate.
[71] Given that this was not an issue ordered to be tried by Justice Mandhane, I will not make any order in that regard. In order to dispense with this application though, I will order that the LIF be paid to the Estate, and leave the issue open as between Murphy and Harper-Slate as to who should be the proper beneficiary. That will provide Harper-Slate and Murphy the time to obtain further independent legal advice on that issue, if they so choose.
VI. Conclusion
[72] For the foregoing reasons, I make the following orders:
i. The proceeds of account number 05HTA6-A (“Cash Account”) are the property of the Estate of William Harper;
ii. The net proceeds in the account number 05HTA6-A (“Cash Account”) shall be released by NBF to the Estate of William Harper;
iii. Erin Forsyth is the beneficiary of the RRSP held by William Harper, identified by NBF account number 05HTA6-S;
iv. Account number 05HTA6-S shall be liquidated and the net proceeds paid to Erin Forsyth only after a sufficient amount has been withheld by the Bank and any related corporation, subsidiary, etc., at their sole discretion, from the Funds to satisfy, among other things, tax owing or that will be owed to the tax authorities in relation to the Accounts and Funds for the appropriate period and for the appropriate taxes as determined by the Bank, plus any applicable interest and penalties that may be imposed by tax authorities, filing fees, accountant fees, and any other fees and expenses incurred or may be incurred by the Bank in relation to administering, liquidating and transferring the Accounts;
v. The Estate of William Harper is the beneficiary of the LIF held by William Harper identified by NBF number 05HTA6-P, without prejudice to any claim that may be made by Murphy or Harper-Slate as to the proper beneficiary given the prevailing legislation;
vi. Account number 05HTA6-P shall be liquidated and the net proceeds paid to the Estate of William Harper only after a sufficient amount has been withheld by the Bank and any related corporation, subsidiary, etc., at their sole discretion, from the Funds to satisfy, among other things, tax owing or that will be owed to the tax authorities in relation to the Accounts and Funds for the appropriate period and for the appropriate taxes as determined by the Bank, plus any applicable interest and penalties that may be imposed by tax authorities, filing fees, accountant fees, and any other fees and expenses incurred or may be incurred by the Bank in relation to administering, liquidating and transferring the Accounts;
vii. Any person that is required to sign and/or comply with documents from the Bank to give effect to subparagraphs paragraphs (i) to (vi) and/or as required under the documents governing each of the Accounts shall do so at the Bank’s request;
viii. The beneficiaries of these accounts and estate trustee of the Estate, as appropriate, shall comply with any and all tax obligations, payments, filings, etc. in relation to the Accounts and Funds;
ix. The parties are encouraged to resolve the issue of costs themselves; if they are not able to, Forsyth and Murphy are to serve and file their written submissions as to costs, limited to 4 pages, double spaced, plus their Bill of Costs and any Offers to Settle, no later than March 15, 2024; the NBF is to provide its written responding submissions, with the same size restriction, along with its Bill of Costs and any Offers to Settle, no later than April 5, 2024; Murphy and Forsyth may make responding submissions to the submissions of each other and of the NFB, limited to 2 pages, double spaced, on or before April 19, 2024; the NBF may make reply submissions, limited to 2 pages, double spaced, on or before May 3, 2024; and
x. The remainder of both applications are dismissed.
Fowler Byrne J.
DATE: February 20, 2024