Court File and Parties

COURT FILE NO.: CV-24-00000011-0000 DATE: 20240522 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Alan John Durand, in his capacity as Estate Trustee for the Estate of Helen Molnar and as Estate Trustee for the Estate of Zsolt Molnar Applicants – and – Eckankar Hamilton, Canadian Guidedogs for the blind, Brantford SPCA, Brantford General Hospital, Knowledge Network, Selfrealization Fellowship Church, Lutheran Evangelical Church, St. Joseph’s Hospice, Fox Ridge Care Community, Siddha Yoga Meditation Centre, and Doctors without Borders Respondents

Counsel: Ellen A. Brohm, for the Applicant No counsel present for any Respondent

HEARD: February 16, 2024 The Honourable Justice Antoniani

Reasons for Decision

Overview

[1] A motion was brought by Alan J. Durand (“Alan”) as the Estate Trustee for the Estate of Helen Molnar and the Estate of Zsolt Molnar. Alan was the son‑in‑law of Helen Molnar (“Helen”) and Zsolt Molnar (“Zsolt”). He was married to their only child, Jean, for about 40 years, until Jean predeceased her parents.

[2] Zsolt predeceased Helen, and his estate went entirely to her. Helen’s last will and testament leaves her estate to three beneficiaries: 75 per cent of the estate is left to her two grandchildren, who are the children of Jean and Alan, and 25 per cent of the estate is left to her sister‑in‑law, Kata Kovacs (“Kata”). Kata is Zsolt’s older sister.

[3] If Kata were alive today, she would be at least in her mid 90’s. Alan brings this motion for a “Benjamin” order seeking to distribute Helen’s estate as if Kata had predeceased Helen.

[4] In addition, Alan asks for a declaration that the Tax-Free Savings Accounts (“TFSAs”) owned by Zsolt as the time of his death be declared invalid. Zsolt owned two TFSAs at the time of his death, for which he had designated beneficiaries. Alan asks for a declaration that those beneficiary designations be declared null because they were made at a time when Zsolt either lacked capacity or was under the undue influence of his former house cleaner, Gina DiFronso (“Gina”).

[5] Alan also asks for relief relating to his appointment as estate trustee and asks the court to waive the necessity to serve two of the named beneficiaries on the TFSAs.

Decision

[6] For the reasons that follow, I declare the TFSAs for the above-named beneficiaries to be invalid because they were created by Zsolt as a result of undue influence.

[7] In addition, I adjourn the issue of the relief requested that the Estate of Helen Molnar shall be administered and distributed as though Kata Kovacs predeceased Helen Molar without issue until proof of further steps taken has been provided by Alan as estate trustee.

Analysis

The TFSA’s

[8] Alan brought a successful motion before Cameron J. and, on March 9, 2021, obtained an order declaring the last will and testament executed by Helen, on April 10, 2013, as the valid and true last will and testament of Helen Molnar, and declaring the last will and testament executed by Zsolt, April 10, 2013, as the true last will and testament of Zsolt Molnar.

[9] Justice Cameron declared that any subsequent wills purportedly signed by either of them were invalid on the grounds that Zsolt and Helen lacked capacity, or, in the case of Zsolt, that he either lacked capacity or on he was subject to undue influence.

[10] Justice Cameron made her order after having received evidence of the undue influence on Zsolt and Helen from Gina, who once worked as a house cleaner for the now deceased parties.

[11] Gina was found to have unduly influenced the parties into the signing of a will and the designation of beneficiaries and having attempted to purchase the matrimonial home of Zsolt and Helen at below fair market value, and into other decisions which were not in the personal and financial interests of Zsolt and Helen.

[12] I have reviewed evidence indicating that, in 2019, during a period when Zsolt was found by Cameron J. to have been under the undue influence of Gina, he obtained a line of credit on his matrimonial home. Using funds from the line of credit, Zsolt attended at the CIBC where he purchased two TFSAs and signed beneficiary designation forms leaving the funds, not to his wife (as per the rest of his estate), but to various charities to which he had little or no connection.

[13] When the matrimonial home was sold after the death of Zsolt, the line of credit was paid off using proceeds from that sale. The TFSA funds are currently held in trust for the Estate of Helen Molnar.

[14] But for the two respondents who have not been served, and for whom service will be waived, the remaining would-be beneficiaries of the TFSAs acknowledged receipt of service. None of the respondents attended at the hearing of the application. One of the would-be beneficiaries, the Brantford General Hospital, has signed a consent waiving its interest in the TFSA.

[15] The affidavit of Alan was sworn in support of this Application. Alan’s evidence is that the line of credit that Zsolt took against the matrimonial home in 2019 was done without Helen’s knowledge or approval. Zsolt spoke little English and relied on his daughter, and later his son‑in‑law (Alan), to assist with his affairs. Zsolt was not familiar with banking or technology; he was a recluse who had few friends.

[16] Alan’s evidence is that the TFSA purchases were out of character for his father‑in‑law, and that they were an unfair depletion of the estate of his mother‑in‑law, since they were purchased using a line of credit against the matrimonial home. The matrimonial home was fully paid and mortgage free prior to those purchases.

[17] As such, those encumbrances were in breach of the Family Law Act that requires spousal consent to an encumbrance of a matrimonial home. Zsolt had no legal authority to take out the LOC on the matrimonial home, and Helen's Estate is entitled to the monies held in the TFSA (together with any interest earned on those monies), which were improperly purchased from the equity of the matrimonial home.

[18] Alan was not aware of the TFSAs when the application was heard by Cameron J., and, as a result, they were not addressed in her decision.

[19] I find that Alan has shown that, on a balance of probabilities, Zsolt either lacked capacity or was under the continuing undue influence of Gina, when he took the line of credit against the matrimonial home without the knowledge or consent of his wife, used those funds to purchase the TFSAs and signed the beneficiary designations.

[20] In making this finding, I also note that the TFSA purchases occurred within 90 days of the execution of a 2019 will which was declared invalid by Cameron J., on the basis that Zsolt lacked capacity.

[21] I declare find, therefore, that the beneficiary designations made by Zsolt for the two Tax Free Savings Accounts at CIBC, being TFSA Account #: 66897517 and TFSA Account #: 66898267, are invalid. These accounts, including any accrued interest, shall form part of the Estate of Zsolt Molnar, to be distributed in accordance with the Last Will and Testament of Zsolt Molnar dated April 10, 2013. Sservice of this Application on the outstanding respondents is hereby waived.

The Benjamin Order

[22] Kava is the sister of Zsolt. Under the valid will of Helen, Kava or her issue would be beneficiaries of 25 per cent of the residue of Helen’s estate, which 25% is approximately $75,000-$80,000. The applicant requests a “Benjamin” order.

[23] A “Benjamin” order comes from Benjamin, Re, [1902] 1 Ch. 723 (Eng. Ch. Div.); it permits the estate trustee to distribute the reside of the estate as if one of the named beneficiaries has predeceased the testator. To determine whether to make a Benjamin order, the court is to consider all the circumstances, including what steps have been taken to find the beneficiary (ies), who conducted the inquiries, whether the inquiries have considered possible location of the beneficiary and whether further avenues of search are available. All of this is to be considered against the cost of making continued inquiries and the likelihood that they will succeed.

[24] Alan argues that Helen has been deceased for over a year, and that it has been four years since Zsolt’s passing. Alan has little knowledge of Kava, as Alan’s wife and her parents are both deceased, he does not speak Hungarian, and he does not know whether Kava had children. Alan has provided evidence of having made some efforts to locate Kava and her issue.

[25] Alan asserts that he has limited information about his deceased wife’s aunt: that her name was Kava Kovacs; she probably resided in Budapest at some point, is the older sister of Zsolt.

[26] If she is alive, Kava is likely in her mid 90’s. Alan indicates that, to his knowledge, Zsolt had become estranged from his sister some years before his death, when some of his letters to her were returned. Some unsuccessful efforts were made at that time to locate Kava online and through social media, apparently at the request of Zsolt.

[27] The amount of money held to the benefit of Kava or her issue is substantial. The efforts described to find Kava and her issue are not insignificant, but in the circumstances, I find that it is premature to consider a Benjamin order. Alan has not shown that he made adequate efforts to inform himself about Kava, or her issue, and that some additional effort is appropriate.

[28] Therefore, this portion of the motion is adjourned sine die and is to be returned upon Alan providing evidence that he has made further efforts to locate Kava or her issue. Such efforts shall included, but are not limited to evidence that he has made inquiries: of any living relatives of Zsolt; of the counsel who prepared the valid last will and testament of each of Zsolt and Helen; of what newspapers or media in Hungary are used to published notices to unknown beneficiaries; and that he has caused appropriate notices to be published in such media.

Order

[29] On a review of the materials filed, and on hearing submissions of counsel, and for the reasons above, this court orders:

a. The Applicant, Alan John Durand, shall be and is hereby appointed as the Estate Trustee for the Estate of Helen Molnar in accordance with her Last Will and Testament dated April 10, 2013. The necessity to serve notice upon the Respondents Siddha Yoga Mediation Centre and Lutheran Evangelical Church is waived, subject to the Order herein.

b. The Court shall issue a Certificate of Appointment as Estate Trustee with a Will for the Estate of Helen Molnar to Alan John Durand upon receipt of this order, the estate administration tax having already been paid by the Applicant.

c. The beneficiary designations made by Zsolt Molnar for the two Tax Free Savings Accounts at Canadian Imperial Bank of Commerce, being: TFSA Account # : 66897517 and TFSA Account # : 66898267 are invalid and that the value of these accounts, plus any interest, shall be paid to the Estate Trustee, Alan Durand, for the Estate of Zsolt Molnar, to be distributed in accordance with the Last Will and Testament of Zsolt Molnar dated April 10, 2013.

d. The Applicant’s costs for this Application shall be paid by the Estate of Zsolt Molnar and the Estate of Helen Molnar jointly and severally in the fixed amount of $11,238.02.

e. Funds equal to the beneficial interest of Kava Kovacs or her issue as of the date of this Order, in an amount calculated after the payment of the costs ordered herein, shall be held in an interest-bearing trust account by counsel for the Estate Trustee, pending the return of this Motion and the further direction of the Court regarding the distribution of those funds.

f. If the Applicant wishes, he may return the Application as a chambers matter, in writing, to my attention. Only an updated affidavit regarding additional efforts made to locate Kava Kovacs or her issue is required. A new record is not required.

Released: May 22, 2024 Antoniani J.

COURT FILE NO.: CV-24-00000011-0000 DATE: 20240522 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Alan John Durand, in his capacity as Estate Trustee for the Estate of Helen Molnar and as Estate Trustee for the Estate of Zsolt Molnar Applicant - and – Eckankar Hamilton, Canadian Guidedogs for the blind, Brantford SPCA, Brantford General Hospital, Knowledge Network, Selfrealization Fellowship Church, Lutheran Evangelical Church, St. Joseph’s Hospice, Fox Ridge Care Community, Siddha Yoga Meditation Centre, and Doctors without Borders Respondent REASONS FOR DECISION S. Antoniani, J. Released: May 22nd, 2024