Court File and Parties
COURT FILE NO.: CV-17-1340-00ES AND COURT FILE NO.: CV-22-00000832-0000 DATE: 2024 03 04
ONTARIO
SUPERIOR COURT OF JUSTICE
CV-17-1340-00ES IN THE MATTER OF THE ESTATE of Anna Wojtaszynski, Deceased
B E T W E E N:
DANIELA “AKA DONNA” LIS, as the Estate Trustee for the Estate of Anna Wojtaszynski
Dorota Irena Hagel and Ishita Chopra, for the Applicant
Applicant
- and -
MARY KOROL and LILIANNE BROWN Respondents
Samuel Nash and Christopher Merrilees, for the Respondent Mary Korol
HEARD: November 22, 2023
CV-22-00000832-0000 IN THE MATTER OF THE ESTATE of Bruno Wojtaszynski, Deceased
B E T W E E N:
DANIELA “AKA DONNA” LIS, as the Estate Trustee for the Estate of Anna Wojtaszynski
Dorota Irena Hagel and Ishita Chopra, for the Applicant
Applicant
- and -
MARY KOROL and LILIANNE BROWN Respondents
Samuel Nash and Christopher Merrilees, for the Respondent Mary Korol
HEARD: November 22, 2023
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] There are two applications before the court. The first relates to the Estate of Anna Wojtaszynski (“Anna’s Estate”). She died on November 6, 2011. The Applicant seeks a passing of accounts for two periods ending on January 31, 2022.
[2] The second application relates to the Estate of Bruno Wojtaszynski (“Bruno’s Estate”). He died on September 15, 2017. It is acknowledged that Anna’s Estate owes approximately $44,000 to Bruno’s Estate. The issue is how it is to be paid.
I. Background
[3] Anna Wojtaszynski (“Anna”) and Bruno Wojtaszynski (“Bruno”) met and married in Poland and moved to Canada. They had three daughters, the Applicant Daniela Lis (“Daniela”), and the Respondents Mary Korol (“Mary”) and Liliane Brown (“Liliane”). Liliane is taking no position in either application.
[4] Since 1986, Anna and Bruno lived at 3 Sonnet Court, in Mississauga (“the Property”). Anna and Bruno owned the house as joint tenants until November 2005, when Bruno severed the joint tenancy. Thereafter, they owned the Property as tenants in common.
[5] In or around 2006, Anna was in Poland visiting her family. When she returned, Bruno refused to allow her back in the house. From that time thereafter, Anna lived with Daniela. There was never any formal separation although at one time, family law proceedings were commenced.
[6] Anna died on November 6, 2011. In accordance with her will, Daniela was to be appointed the estate trustee and Anna’s Estate was to be divided evenly between her three daughters.
[7] The biggest asset in Anna’s Estate was her 50% interest in the Property. She also had approximately $75,000 in savings, of which $67,000 was held in joint accounts with Daniela.
[8] It was Anna’s wish that Bruno be permitted to live at the Property for as long as he wished. Accordingly, Daniela did not take any immediate steps to be appointed estate trustee.
[9] Bruno stayed at the Property until March 1, 2013 and thereafter, moved in with Mary and her family. Renovations on the Property were undertaken thereafter in order to ready it for sale. The Property was listed for sale in August 2015, with Mary’s husband as the listing agent. It eventually sold in September 2015 for $600,000.
[10] Daniela received her appointment as Estate Trustee for Anna’s Estate on December 1, 2014. Before Anna’s Estate was wrapped up, Bruno died on September 15, 2017. Mary was named the Estate Trustee in Bruno’s will.
[11] Anna’s Estate is comprised of the following: a) TD Bank Account ending in “044”, held jointly with Daniela, with a balance of $5,591.41; b) TD Bank Account ending in “556”, held jointly with Daniela, with a balance of $3,426.80; c) TD Bank Account ending in “545”, held jointly with Daniela, with a balance of $57,799.12; d) TFSA, solely held by Anna, with a balance of $2.96; e) A Flex RIF, solely held by Anna, account with the balance of $3,824.37; f) Proceeds of sale of the Property in the sum of $283,552.54; and g) Jewellery appraised at $5,805.
[12] While these estates appear straight forward, the difficulty arises from the strained relationship between Anna and Bruno, which has been passed on to the next generation. It appears Daniela took on Anna’s battles, Mary took on Bruno’s battles and they both took on battles themselves. The animosity and distrust between these two sisters have only been amplified. The result is an ongoing battle costing both estates unnecessary time and expense.
II. Issues
[13] The following issues must be decided with respect to Anna’s Estate: a) Should the accounts for Anna’s Estate for the period of November 6, 2011 to May 31, 2021 be passed? b) Should the accounts for Anna’s Estate for the period of June 1, 2021 to January 31, 2022 be passed? c) Should Daniela receive trustee’s compensation?
[14] The following issues must be decided with respect to Bruno’s Estate: a) Does Anna’s Estate owe to Bruno’s Estate the sum of $44,566.29 and if so, how should it be paid?
III. Analysis
A. Bruno’s Estate
[15] At the hearing of this matter, the parties agreed that Anna’s Estate owes to Bruno’s Estate the sum of $44,566.29. This represents Anna’s share of renovations costs undertaken to sell the Property and her share of the carrying costs before the Property was sold.
[16] This agreement took years to reach. Negotiations started when Bruno was still alive and were not settled until after his death. Now, it appears that the method of payment is under dispute.
[17] Mary has provided a portion of Bruno’s will that appoints her as Estate Trustee. Accordingly, Mary has demanded that the funds be paid directly to her. Daniela is concerned that no Estate Trustee has been appointed for Bruno’s estate and she is concerned that she may have some legal exposure if she simply hands the money over to Mary.
[18] On or about January 20, 2023, the parties agreed that these funds would be paid into court to the credit of Daniela’s Application. They have remained there ever since.
[19] At the hearing of this matter, I suggested that these monies be paid to “the Estate of Bruno Wojtaszynski”. In that way, Daniela can be assured that the money went to the right “party” and Mary would have to take the necessary steps to deposit the cheque. Both parties were agreeable, and an order will be made accordingly.
B. Anna’s Estate
[20] The Applicant brings this application pursuant to r. 74.18 of the Ontario Rules of Civil Procedure. Section 23(1) of the Trustee Act allows for a voluntary passing of accounts by the trustee. Given the Amended Notice of Objection, a hearing was necessary.
[21] Initially, Daniela provided an informal accounting in 2017, but it was unsatisfactory to Mary. As a result, formal accounting has been provided for the two periods.
[22] At the hearing of this matter, Mary initially took the position that the accounts to be passed were the informal accounts that Daniela delivered in 2017 with the Notice of Application. They took this position because the Notice of Application, issued in 2017, only referred to the informal accounts and was never amended.
[23] This position is another symptom of how the animosity between Daniela and Mary has caused unnecessary time and expense. Clearly, after the informal accounts were presented, it was Mary who insisted that a formal accounting be done. Formal accounts were prepared and presented to her in October 2021, with the appropriate affidavit verifying the accounts. Another set of formal accounts were prepared and presented in August 2022 with the appropriate affidavit verifying the accounts. One and a half years then passed leading up to this hearing and I was provided with no correspondence from Mary indicating that she was confused about what accounts were to be passed. Granted, the Notice of Application was not amended, but there can be no dispute that it was the formal accounts that were presented to the courts for passing. If there was any confusion on the part of Mary, it was surely a matter that could be resolved by way of a telephone call between counsel at any time in the last several years.
[24] When pressed, Mary agreed that the hearing would proceed on the formal accounts that were provided by Daniela in 2021. While Mary’s Amended Notice of Objection (prepared after the formal accounting was prepared) listed nine pages of concerns, at this hearing she indicated that she is only proceeding with those objections set out in her Factum.
1. The Law
[25] As a fiduciary, a trustee has three principal duties: (a) to carry out the terms of the trust with honesty and due care and attention; (b) to personally carry out the responsibilities entrusted to him or her and not to delegate those responsibilities; and (c) to ensure that his own interests do not conflict in any way with his duty to the beneficiaries that he serves. A trustee also has an obligation to keep proper accounts. He or she must be in a position at all times to prove that he or she administered the trust prudently and honestly: Zimmerman v McMichael Estate, 2010 ONSC 2947, 103 O.R. (3d) 25, at paras. 30-31.
[26] Given the trustee’s obligations, they bear the onus of proving that the accounts are in proper form, that they have managed the assets properly and will distribute the assets in accordance with the will.
[27] I will examine each set of accounts separately, and the objections made with respect to those accounts.
2. Accounts November 6, 2011 (Date of Death) to May 31, 2021
a. Item 94 Disbursements - Distribution on February 29, 2016
[28] On February 29, 2016, Anna’s Estate paid to Liliane the sum of $35,729.80. Daniela considered this a disbursement towards Liliane’s entitlement under Anna’s will.
[29] Mary objects to this disbursement as it did not treat all beneficiaries equally. She was not given notice of this disbursement for over one year and no distribution was made to her or to Daniela at that time.
[30] Trustees are bound by the “even-hand rule”, which is a way to say that they have a duty to act impartially as between beneficiaries. As indicated in The Law of Trusts in Canada, 2nd ed., (Toronto: Carswell, 1984), Professor Waters describes that rule in the following terms:
It is a primary duty upon trustees that in all their dealings with trust affairs they act in such a way that, if there are two or more beneficiaries, each beneficiary receives exactly what the terms of the trust confer upon him and, otherwise, receives no advantage, and suffers no burden which other beneficiaries do not share. In this way, the trustees act impartially; they hold an even-hand. The settlor or testator may choose to give disproportionate interests to various beneficiaries and he, very often, does so in practice, but that is his privilege. It is still the duty of the trustees to carry out the terms of the trust as they find them and to ensure that in the administration of the trust, they do not give advantage or impose burden when that advantage or burden is not so found in the terms of the trust. In the Estate of Norma Baer (deceased), 2014 ONSC 4468, at para. 18.
[31] With respect to this disbursement, I do not find that Daniela has been even-handed with her treatment of the beneficiaries. Mary did not receive a disbursement at that time, and Daniela kept control of all the money. As I will explain below, I do not find that Mary had already received an advance on her inheritance. Accordingly, the beneficiaries were not treated equally.
[32] As a beneficiary, Liliane is entitled to one third of the value of the estate. Once the full proceeds of the estate are determined, it can then be ascertained whether this was the proper amount to be disbursed, whether she is entitled to more, or whether Daniela will have to answer for there being insufficient funds remaining for the other beneficiaries.
b. Distribution to Beneficiaries – Note 6
[33] This objection relates to events that took place in 2006.
[34] In her first informal set of accounts, Daniela deducted three amounts from Anna’s Estate, what she called “Payment to Beneficiaries”. The first was a payment made to Liliane, which is already addressed in Item 94. The second was noted as a payment to Mary for $44,210.45 and was identified as “Advancement from Anna Sched. F – GIC”. Schedule F identified two GICs: a) GIC ending in “14”, in the sum of $17,251.66; and b) GIC ending in “15”, in the sum of $26,958.79; (“the GICs”).
[35] There was also a small disbursement to Daniela noted, in the sum of $100.
[36] In the formal accounts presented for passing, Anna’s Estate categorizes the sum of $44,210.45, as an advance distribution to Mary, along with the distribution identified in Item 94. There is no longer an advancement listed for Daniela. This “advance distribution” to Mary is not listed anywhere else in the formal accounts.
Mary’s Position
[37] Mary disputes that the GICs should be considered an advance on her inheritance. She acknowledges receiving this amount, but claims it was given to her by Anna in 2006, four years prior to Anna making her last will and five years prior to her death. She states it was a gift from Anna to equalize the money she had already advanced to Daniela in the previous years.
Daniela’s Position
[38] Due to the principles of resulting trust, Daniela argues these GICs, which were held jointly by Anna and Mary, are Anna’s property. This presumption can be rebutted by evidence that it was intended to be a gift. Daniela argues that Mary has failed to rebut this presumption.
The Law
[39] A resulting trust is imposed to return property to a person who gave it and who is beneficially entitled to the property, from someone who has title to it. It generally arises in situations were there is a gratuitous transfer: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 16.
[40] A resulting trust is presumed, unless the transferee can rebut that presumption by showing clear, convincing and cogent evidence that the transfer intended to transfer legal and beneficial title to them. In other words, they need to show that it was a gift: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 24; MacIntyre v. Winter, 2021 ONCA 516, 158 O.R. (3d) 321, at para. 25.
[41] It is the intention of the grantor at the time of the transfer that is determinative: Sawdon Estate v. Sawdon 2014 ONCA 101 at para. 57. When determining the transferor’s intention, the court can consider (a) evidence subsequent to the transfer provided it is relevant to the transferor's intention at the time of the transfer; (b) the transfer documents; (c) the control and use of the property; (d) the granting of power of attorney; and (e) the tax treatment of the property: Pecore, at para. 55-70.
[42] The limitation period that applies to a resulting trust that does not involve real property is two years: s. 4, Limitations Act, 2002, S.O. 2002, c.24, Sch. B.
Analysis
[43] The accounts held jointly by Daniela and Anna upon Anna’s death should be considered the property of the Estate. Daniela has properly accounted for them in this manner. I disagree though, that the principles of resulting trust apply to the GICs.
[44] At the time of Anna’s death, the GICs were no longer held jointly by Anna and Mary. They had been cashed in 2006, approximately five years before Anna died. Even if I accept that the various GICs held by Anna and any of her daughters were set up for estate planning purposes only, Anna either changed her mind in or around 2006 and gave them to Mary, or else decided not to pursue the matter.
[45] It is known that the GICs were up for renewal in 2006. In evidence is a letter dated September 7, 2006 in which Anna authorizes the bank to put the GICs into her personal accounts. She adds that if Mary did not agree, then the funds are to be paid to her and Mary jointly. I then have a second letter from Anna dated October 20, 2006 wherein she authorizes that the entirety of the two GICs be paid to Mary.
[46] In the course of the matrimonial proceedings between Anna and Bruno, the GICs were included on Anna’s financial statement. On January 14, 2008, Anna’s lawyer advised Bruno’s lawyer that although the GICs were properly on the financial statement, he argued that they should not be equalized as the entire proceeds had been transferred to Mary. In this letter he stated:
My client felt she was bullied by Mary into signing the [bank] Drafts. Mary then wrongfully converted them to her own use. Mrs. Wojtaszynski did not receive any of the funds. The GICs did not belong to Mary Korol and my client was and is within her rights to commence an action for wrongful conversion and indeed to report this matter to the Police. I attach copies of the authorizations signed by my client and copies of the Bank Drafts. That she did not do so is a testament to her desire for peace within the family. Nonetheless I would be remiss in my professional responsibilities if I did not advise her of her options or apprise you of the situation.
[47] Accordingly, if Anna, or her estate had a claim against Mary for this money, it has long since passed. Daniela cannot now go back 17 years and undo what she believed to be an injustice done to her mother. Also, no evidence has been provided by Daniela to show that this money, advanced five years before her death, was supposed to be an advance on an inheritance. At best, the evidence is conflicting.
[48] Accordingly, there shall be no “advance distribution” to Mary for the sum of $44,210.45.
c. Items 93, 96, 98, 99, 101 - 118 Disbursements - Legal Fees Paid By Estate
[49] Daniela has listed all the legal accounts she has paid during this period, as disbursements from the Estate accounts.
[50] The legal accounts can be divided between those paid to Weir Nakon, who represented the Estate until 2017, and then those paid to Hagel Law Firm, who then represented the Estate until now.
Law
[51] Any legal fees paid with respect to the solicitor’s work in the administration of the estate are subject to review: r. 74.18(13).
[52] When passing the accounts of an estate trustee, the court has the jurisdiction to enter into and make full inquiry and accounting of and concerning the whole property that the deceased was possessed of or entitled to, and its administration and disbursement: s. 49(2) of the Estates Act.
[53] Estate trustees are entitled to be indemnified for expenses reasonably incurred in connection with the administration of the estate. These costs include solicitor and client cost and all proceedings in which some question or matter in the course of the administration is raised as to which the trustee has acted prudently and properly: Thompson et al. v. Lamport et al., [1945] S.C.R. 343, at p. 356.
[54] The trustee’s right to indemnification of their expenses also includes litigation expenses. This right extends even when the estate trustee is also a beneficiary, and who also pursues their personal interests along with that of the trust: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at p. 391.
[55] The right to indemnification has been codified in section 23.1 of the Trustee Act, R.S.O. 1990 c. T. 23. A trustee is allowed to use trust assets to cover expenses reasonably related to fulfilling the trustee’s responsibilities. This section of the Trustee Act does not require the consent of a beneficiary or a court order prior to an expense being paid. That being said, s. 23.1(2) provides that if an expense was paid from the estate, the court can order that it be reimbursed if it finds that the expense was not properly incurred in carrying out the estate.
[56] When determining what legal fees should be paid by Anna’s Estate, it must be remembered that the lawyer is engaged by the estate trustee, not the estate itself.
[57] A trust is not a legal entity capable of suing or being sued. Trustees hold ownership of trust assets and legal actions may be taken in their name. Estate trustees are initially personally liable for litigation costs. Estate trustees will be entitled to be indemnified, or reimbursed, out of the estate for amounts paid by them only to the extent that such liabilities were reasonably incurred for the purpose of performing their responsibilities in administering, or distributing, the estate or trust. In each case, there is a question whether the services were provided for advice and assistance to the client in relation to his, or her, personal interests rather than to those of the estate. Further, even if the accounts delivered are found to relate to services provided to the trustee in the course of their duties, there will still be a question whether the amounts were reasonably and properly incurred by the trustee in that capacity: Martyn v. Taylor (2003), 50 ETR (2d) 220 (Ont. S.C.), at para. 68.
[58] Accordingly, the estate trustee is personally liable to the solicitor for his or her fees. The right to indemnity or for reimbursement exists as a matter between the estate trustee and the beneficiaries of the estate and is to be determined either by an agreement with them or on a passing of account: Bott v. Macaulay (2005), 76 O.R. (3d) 422, at para. 20; DeLorenzo v. Beresh, 2010 ONSC 5655, 62 E.T.R. (3d) 65; Santos v. Coghlan et al., 2023 ONSC 4862, at para. 27.
[59] In order for me to ascertain the nature of the legal services on a passing of accounts, I will have to examine the accounts and determine if they were reasonable and for the benefit of the estate. A trustee has an obligation to keep proper accounts and must have the accounts ready and give full information whenever required: Zimmerman, at para. 31; Estate of Toller James Montague Cranston, 2021 ONSC 1347, 65 E.T.R. (4th) 84, at paras. 100-101. That being said, the standard of care and diligence required of a trustee in administering a trust is that of a person of ordinary prudence in managing his own affairs: Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302, at p. 315.
Analysis
[60] There is one invoice rendered by Weir Nakon, dated January 16, 2018. It also reflects that a retainer of $4,000 was paid on April 6, 2014, which is item 93 in Disbursements. The full account was not paid until the next period of accounts which I am reviewing.
[61] I have reviewed the invoice from Weir Nakon. It involves matters associated with administering the estate, such as preparation of documents for the Application for Certificate of Appointment of Estate Trustee, obtaining letters of opinion of value, communications regarding renovations, reviewing the Notice of Objection and responding to same and the work associated with changing Anna’s date of birth and its consequences. These are clearly proper estate expenses. There are also many entries that deal with the dispute over the value of renovations. Once the conflict started to escalate, it appears that this firm recommended that Daniela find other counsel. I find that this invoice, and the associated item 93 on the accounts, is appropriate and is a proper expense.
[62] For the remaining items noted, I am not in a position to indicate whether they are proper expenses. I have no knowledge of what the invoices are for. No copies of these invoices were provided. There appear to be numerous invoices paid, but no indication what these invoices are for with the exception of one invoice which is clearly identified as from Hagel Law Firm in July 2017.
[63] There may also be some double accounting. There are two retainers paid to Hagel Law Firm from the estate accounts totalling $25,000. On top of these two payments, there are a number of invoices. It is not clear if these are additional invoices over and above the retainer paid, or if these invoices would have been paid from the retainers.
[64] Accordingly, under these circumstances, I cannot determine if these are proper expenses required for the administration of the estate. These expenses therefore cannot be passed.
d. Trustee Compensation
[65] Daniela claims the sum of $11,848.51 as trustee compensation for this period. Mary claims it should be reduced by 50% to account for Daniela’s delay in administering the estate, or the poor manner in which she administered the estate.
Law
[66] Section 61 of the Trustee Act provides that a trustee is entitled to fair and reasonable compensation for the efforts expended in administering the estate, as may be allowed by this court. Section 23(2) states that the amount of compensation can be fixed upon a passing of accounts.
[67] In setting an appropriate amount for compensation, I should first start with the “tariff” and then confirm the mathematical result against five factors set out in Toronto General Trusts Corp. v. Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.); Laing Estate v. Hines (1998), 41 O.R. (3d) 571 (C.A.); Irwin v. Robinson, at paras. 53-54.
[68] In Jeffery Estate (Re) (1990), 39 E.T.R. 173 (Ont. Surr. Crt.), the court explained what is commonly referred to as “the tariff”:
… in Ontario at least, a practice has developed of awarding compensation on the basis of 2½% percentages against the four categories of capital receipts, capital disbursements, revenue receipts and revenue disbursements along with, in appropriate cases, a management fee of 2/5 of 1% per annum on the gross value of the state: see Dickson & Wilson, Ontario Estate Practice, 2d ed. (1986) at pp. 474-5. However, cases such as Re Kennedy [1944] O.W.N. 734 and Re McPherson [1945] O.W.N. 533, make it clear that the award of a management fee requires special circumstances and will not be allowed automatically or routinely…
[69] In Jeffrey, the court further stated that the process of setting compensation is not scientific but is a search for an award which reflect fairness to the executor and an appropriate quantum meruit award in a unique setting.
[70] The five factors referred to in Toronto General Trusts, are (a) the size of the trust, (b) the care and responsibility involved, (c) the time occupied in performing its duties; (d) the skill and ability shown, and (e) the success resulting from the administration.
[71] The conduct of a trustee, in carrying out their duties, may justify the court depriving him or her of their compensation. An executor must make a proper accounting as a condition precedent to being awarded compensation. Only exceptional misconduct though should deprive him or her of the right to remuneration. In general, although an executor may be guilty of neglect and defaults, these, if not dishonest, and capable of being made good in money, do not deprive the executor of the right to compensation although they may influence the amount allowed: Assaf Estate (Re) (2009), 94 O.R. (3d) 561, (Ont. S.C.), at para. 151; Zimmerman, at para. 35.
[72] In addition, an estate trustee is personally responsible to prepare accounts. If the accounts are prepared by someone else, such as an accountant or a lawyer, the costs of preparation of the accounts is deducted from her compensation: Re Knight Estate (1999), 30 E.T.R. (2d) 225 (Ont. S.C.) at para. 31; McDougall Estate, 2011 ONSC 4189, at para. 61.
Analysis
[73] I will first start with the “tariff” calculation. Daniela has requested 2½% of receipts and disbursements. I have accepted the “receipts” set out in the accounts but have reduced the “disbursements” to $19,053.01 by disallowing certain legal fees and the early disbursement to Liliane. Utilizing the “tariff” rule, that would result in a compensation payment of $9,740.24.
[74] Starting with this amount, I will decide if it should be increased or decreased after considering the Toronto General Trusts factors.
Size of Trust
[75] This is not a large estate. The value of the estate’s assets, before taxes and other proper expenses, is approximately $360,000.
Care and Responsibility Involved
[76] With one exception, there was nothing particularly complicated about this estate. Once the Property was sold, the majority of the cash was already accessible by Daniela.
[77] The one duty that was required of Daniela which required a little extra work was changing Anna’s birth date on all her documents. The full details of this work are explained further herein.
Time Spent on Duties
[78] Considerable time appears to have been spent, which was wholly disproportionate to the size of the estate. It is in this category that Mary states that Daniela’s conduct was such that her compensation should be reduced.
[79] I have reviewed the voluminous evidence filed by each side containing each sister’s allegations of the unreasonable and combative conduct of the other sister. From this review, I have been able to make a number of observations.
[80] First, while there was significant delay in administering Anna’s Estate, both parties played a part in this delay.
[81] The evidence shows that before Anna died, she told Daniela that she wanted Bruno to remain in the house. That was the largest asset of the Estate and would not be sold until Bruno decided to leave. With the exception of some jewellery and a small TFSA, there was nothing else that required a Certificate of Appointment until Bruno decided to leave. Daniela’s delay in applying for a Certificate of Estate Trustee until that time was not unreasonable. Holding off on appraising the jewellery until 2014 was also not unreasonable considering that nothing was happening with the estate until that time. When Bruno decided to leave in 2013, and after the house was renovated and listed, Daniela made the appropriate application.
[82] Unfortunately, Daniela encountered difficulties in being appointed as Estate Trustee. First, she could not get the Property appraised for her application to be appointed as Estate Trustee because Bruno had instructed her not to come to the house or communicate with him.
[83] Next, once Daniela did make the application, it was Mary’s Objection that caused a further delay. The first objection – an incorrect address – was easily corrected. The second objection was that Anna’s date of birth was incorrect. The Application indicated that her year of birth was 1917, when it was actually 1921. This was because when Anna was young, she left Poland and travelled to France to work and support her family. In order to work in France, she had to be older, so her Polish passport stated (incorrectly) that she was born in 1917. Subsequently, all Anna’s documentation listed her year of birth as 1917. Anna never took any steps in her lifetime to rectify this. Nonetheless, Mary insisted that Anna’s year of birth on her death certificate, on the Application for appointment and on her tombstone, be changed.
[84] In order to proceed, Daniela obtained Anna’s proof of birth from Poland showing her proper year of birth. The change of her date of birth required changes to be filed with the Canada Revenue Agency, Services Canada and the French Pension Authority. The end result was that Anna’s Estate had to pay back $12,293.78 for an overpayment of Old Age Security, and subsequently received the sum of $7,655.78 as a result of an underpayment of her Canada Pension Plan benefits.
[85] Anna had kept her incorrect date of birth on all her documents. Mary insisted that it be corrected. Daniela did such, as the Estate Trustee. This does not amount to a delay on the part of Daniela.
[86] Accordingly, I do not find that Daniela’s delay in applying to be the Estate Trustee until 2014 to be unreasonable in the circumstances. I note that Mary has not yet herself applied for a Certificate of Appointment for Bruno’s Estate because she feels it is not necessary. It is disingenuous to cast dispersions on Daniela for making the same determination in 2011 when Anna died.
[87] Afterwards, the correspondence between counsel for Daniela and Mary took on an adversarial tone that prevented the timely wrapping up of Anna’s Estate. Once they finally agreed to listing the home, they then started fighting about renovation and carrying costs. At first, Mary wanted Anna’s Estate to cover one-half of the carrying costs of the Property, including utilities, while Bruno lived there alone.
[88] With respect to the renovations, Mary had sole carriage of the renovations and sale, and would not provide Daniela access to the property, or any input in the renovations despite Anna’s Estate having a 50% ownership interest in the Property. Mary also initially demanded $20,000 for her time and effort in renovating the property. Understandably, Daniela wanted proof of the renovation costs.
[89] Things escalated. A “chicken and egg” battle started where Daniela would not pay to Bruno Anna’s share of his expenses related to the Property until Mary could justify why she wanted an additional $20,000. Mary would not release the money from the sale of the Property until Daniela would agree to pay for Anna’s share of the expenses. That was followed by a ludicrous debate about who had property of Anna and Bruno’s marriage certificate. It was not until February 2016 that Anna’s Estate was paid for her 50% share of the Property. Mary still maintained her demand for compensation for preserving the Property and considered it a debt of Anna’s Estate. It then appeared that the full amount owing to Bruno for carrying costs and renovations was settled, but Daniela would not pay it. The repercussions of Anna’s change of date of birth were still being dealt with by the estate accountant and CRA into 2017.
[90] Daniela’s first informal accounting dated January 12, 2017 undervalued the estate by approximately $60,000 (which was roughly the value of the joint investments she held with Anna). Afterwards, Mary was not satisfied with the documentation provided by Daniela. Mary brought a motion and obtained an order for disclosure, and a costs order compelling Daniela to provide that documentation. It was delivered, but not within the time frame ordered. Despite this disclosure though, Mary changed her Notice of Objection in only a minor way. It was not until the hearing of this matter that the objections were reduced. I should also note that there was a further delay due to the materials not being filed on time and the next court date not being available for approximately one year. That delay was due to the back log in the courts and not necessarily attributable to either party.
[91] What is evident throughout is that both Mary and Daniela are trapped in the past. Both have made serious allegations against the other that relates to events that occurred years before Anna died. Both accuse the other of wanting to take over their parents’ money, or improperly taking or controlling their parents’ money, or manipulating their parents. Their distrust has continued and festered.
[92] I note that in a letter from Daniela’s lawyer to Mary’s lawyer on December 8, 2015, Daniela’s lawyer estimated that their legal fees to date were $5,800 and the probate fees were $2,455. He also anticipated an accountant’s invoice. This matter could have been wrapped up in or around 2014 or 2015 with professional fees of approximately $10,000. It is extremely unfortunate that these two ladies could not put old grievances behind them and wrap things up in a more amicable manner. The irony is not lost on me that their mutual accusations of deceit and manipulation have depleted the very estate that they claim they are so vehemently trying to protect.
Skill and Ability Shown
[93] Given that the estate was relatively simple, not a great deal of skill or ability was required. The main skill required was the ability to keep proper records and being able to produce them in a timely manner. As indicated above, that consumed a great deal of time, which has already been addressed.
Success of Administration
[94] In the end, I am not sure what success has been shown. For the time period involved, the estate has not yet been administered, and there appears to be more liabilities that must be addressed.
Summary
[95] I am not prepared to reduce Daniela’s compensation as a result of her alleged conduct. I find that both parties bear the blame of being so intractable. Daniela was not as forthcoming or timely as she could have been. On the other hand, even if Mary’s grievances regarding a lack of documentation are valid, her complete distrust of Daniela prevented her from realizing that the litigious and adversarial nature of her actions over the years cost her more time and money than the amounts at issue.
[96] That being said, Anna’s estate was small. The Estate was not significantly advanced after the Property was sold. Daniela’s lawyer and accountant did do some of the work associated with the administration of the estate. There must be some reduction to recognize that. Accordingly, I set her compensation at 75% of the “tariff” amount, and therefore fix her compensation for this period in the sum of $7,300.
3. Accounts to June 1, 2021 to January 31, 2022
a. Items 4 - 14 Disbursements - Legal Fees Paid By Estate
[97] With respect to items 11 and 14, being the account paid to Weir Nakon and the associates wire transfer fee, I have already indicated that those two items are proper estate expenses.
[98] Items 7 and 12 are specific to Bruno’s Estate and the cost to Anna’s Estate to pay the money into court. Unfortunately, one of these invoices is incorrectly stated. Item 12, being invoice 172703 is actually in the sum of $2,415.76, but incorrectly included invoice 172646 which was not yet paid. The proper amount of these two invoices, which dealt with Bruno’s Estate total $3,250.28. Unfortunately, the invoices are redacted, so it is difficult to determine if the expenses are appropriate.
[99] With respect to the remaining items, item 10 is misstated – it should be $113. The total legal fees claimed that relate to Anna’s Estate alone total $17,660.17. Unfortunately, the accounts for this period are redacted. I am unable to determine if these expenses are appropriate.
[100] Accordingly, these legal fees are not passed at this time.
b. Trustee Compensation
[101] For this period, Daniela has claimed the sum of $1,400.38. This has been calculated as 2 ½ % of disbursements in the sum of $56,015.23. As noted above, I have reduced the disbursements to $35,119.82, which reduces the “tariff” compensation to $878.00. I see no reason to vary the amount during this period. A great deal of work was undertaken in order to prepare the formal accounting and produce the records. This assisted counsel in preparing the formal accounts. This brought the estate much closer to resolution.
4. Costs
[102] With respect to the costs for Bruno’s Application, I find that each party should bear their own costs on a personal basis. This was not an application that was necessary to administer Bruno’s estate. It was not a necessary step to administer Anna’s Estate.
[103] The parties agreed on the sum owed some time ago. While I do not find that a payment into court was necessary, Mary’s demand that they be paid to her directly is also not reasonable, especially in light of her refusing to provide a full copy of Bruno’s will to show who the beneficiaries were and her refusal to be appointed as estate trustee. I find it incredulous that the parties could not find a resolution to this on an earlier occasion, such as the resolution proposed by the court at the start of the hearing. Neither party should be rewarded for that behaviour.
[104] Accordingly, the amounts taken from Anna’s Estate to cover the legal fees for Bruno’s Estate should be reimbursed to Anna’s Estate.
[105] As for the costs for Anna’s Estate, I will hear from both parties as to whether they should be paid by Anna’s Estate or by the other.
IV. Conclusion
[106] For the foregoing reasons, I make the following orders: a) With respect to CV-17-00001340-00ES for the accounts dated November 6, 2011 to May 31, 2021, the accounts are passed, and all other objections dismissed, except for the following:
- The “Distribution to Beneficiaries” in part 9 of the accounts indicating that Mary Korol has already received the sum of $44,210.45;
- Item 94 of the Disbursements, being the early distribution to Liliane Brown;
- Items 96, 98, 99, 101 to 118 of the Disbursements; b) With respect to CV-17-00001340-00ES for the accounts dated June 1, 2021 to January 31, 2022, the accounts are passed and all other objections dismissed, except for the following:
- Items 4 to 10, 12, 13 – Disbursements; (the numbering is not lined up on this account, so for more clarity, none of the accounts are passed except for the two accounts associated with Weir Nakon and the reimbursement to Daniela for expenses); c) With respect to CV-22-000832-0000:
- The funds in the sum of $44,566.29, currently held in court to the credit of CV-17-1340-00ES, shall be paid out in full to “The Estate of Bruno Wojtaszynski”;
- This payment shall be in full satisfaction to any claim Bruno’s Estate may have with respect to the financial obligations of Anna’s Estate with respect to the Property; d) Daniela’s compensation as Estate Trustee for the period up to and including January 31, 2022, is fixed at $8,183 exclusive of HST, and shall be paid from Anna’s Estate; e) If the amount owing to Liliane is less than what she has already been advanced, then the overpayment must be returned to the Estate or Daniela must assume liability for it and pay it back to the Estate; f) With respect to the costs of CV-22-000832-0000, each party shall bear their own costs. g) Costs submissions for application CV-17-00001340-00ES shall be made in writing. Daniela and Mary shall both serve their written costs submissions, limited to 4 pages, double spaced, along with their detailed Bill of Costs and any Offers to Settle, on or before March 22, 2024; Daniela and Mary may serve and file any responding written submissions, limited to 4 pages, double spaced, on or before April 12, 2024. h) The remainder of the two applications are dismissed.
Fowler Byrne J.
Released: March 4, 2024