Court File and Parties

COURT FILE NO.: CV-24-95220-ES DATE: 2024/06/11 SUPERIOR COURT OF JUSTICE – ONTARIO

In the Estate of LIDIA KACIN, a.k.a. LYDIA KACIN, a.k.a. LYDIA MARIJA KACIN a.k.a LILLIANA KACIN, DECEASED

RE: Martina Kacin a.k.a. Marta Mira Kacin, Applicant AND: Yelka Mira Kacin a.k.a. Yelka Mira Ingram and Edward Kacin a.k.a. Eddie Kacin Respondents

BEFORE: Somji J.

COUNSEL: Dennis Van Sickle, for the Applicants Colin Wright, for the Respondent, Yelka Mira Kacin a.k.a. Yelka Mira Ingram Devon Goyo, for the Respondent, Edward Kacin a.k.a. Eddie Kacin

HEARD: April 30, 2024

Endorsement

[1] This is a motion for directions to advance an estate matter involving a lost will.

[2] The parties are three surviving children of the deceased Lidia Kacin who passed away on January 10, 2023. It is not disputed that the deceased suffered from mental health issues, the duration and extent of which are in dispute. Those mental health issues resulted in police interventions and hospitalization. Yelka Kacin was the only sibling who maintained a relationship with her mother until her death. She was also involved in her mother’s care, and in 2020, became the deceased’s guardian and trustee. The Applicant Martina Kacin and Edward Kacin did not see the deceased between 2011 and her death.

[3] The deceased prepared a will in 2001 assigning Yelka Kacin as her sole beneficiary (the “2001 will”). Unbeknownst to the parties until after 2020, the deceased prepared a second will and powers of attorney in 2011. A Brockville lawyer Ainsley Coleman confirmed that she has possession of a copy of the deceased’s 2011 Will which was prepared by Robert Horton who has since been appointed a Judge of the Ontario Court of Justice.

[4] In the 2011 will, the deceased names Martina Kacina from whom she was estranged as the sole trustee and beneficiary to her estate to the exclusion of her siblings (the “2011 Will”). The deceased explains in the 2011 Will that she has assigned her estate to Martina Kacin because she has already provided significant gifts to her daughter Yelka over the years and received indications that her son was financially independent.

[5] The original 2011 Will and powers of attorney have not been located. Martina Kacin seeks to probate the 2011 Will in its copy form. Yelka and Edward Kacin oppose and rely on the presumption of destruction that because the 2011 Will cannot be located, the deceased intended to revoke it. In response, Martina Kacin argues that because of her mental health issues, the deceased lacked capacity to revoke the 2011 Will.

[6] The deceased’s estate is presently valued at $175,000 most of which was invested by way of GICs with Royal Bank of Canada. These assets are restrained. Some of the GICs have matured and the rest will mature in July 2024. The deceased’s estate is due to file a tax return.

[7] The Applicant seeks an Order Giving Directions pursuant to Rule 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: i) that establishes the issues to be adjudicated; ii) for production orders; iii) for mediation; and iv) for a litigation timetable.

[8] The Respondents agree to the above-noted requests but not all the production orders made by the Applicant. The Respondents seek additionally an order for the appointment of an Estate Trustee during litigation (“Estate Trustee”) pursuant to Rule 75.06 (f).

[9] The issues to be decided on this motion are:

1. What are the issues to be addressed at a hearing on the merits?
2. Should there be an appointment of an Estate Trustee? and
3. What should the process be for further productions?

Issue 1: What are the issues to be addressed at a hearing on the merits?

[10] The main issue to be determined at a hearing on the merits is whether the Applicant has proven the four elements required to probate the 2011 will. The elements needed to prove a lost will as set out in Sorkos v Cowderoy at para 8 are:

1. Due execution of the will;
2. Particulars tracing possession of the will to the date of death, an afterwards if the will was lost after death;
3. Rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and
4. Proof of the contents of the lost will.

[11] The parties agree that Martina Kacin can satisfy the first and fourth requirements. Consequently, I agree that the issues to be decided on the merits to be elements #2 and #3.

[12] I also find that an additional issue to be decided is whether Yelka Kacin is entitled to compensation of $28,315 from the deceased’s estate for expenses incurred while she was the deceased’s guardian between May 27, 2020 and January 10, 2023. Edward Kacin does not oppose compensation. Martina Kacin opposes any compensation and disagrees with the amounts claimed. Counsel For Yelka Kacin indicates that the amounts were calculated in accordance with the statutory and regulatory guidelines but no payment has been made to date.

Issue 2 Should there be an appointment of an Estate Trustee?

[13] Yelka and Edward Kacin seek the appointment of an Estate Trustee. They both agree that the amount of bond to be posted can be reduced or dispensed with. Yelka Kacin has proposed the appointment of Brian Evely, a Deputy Judge and counsel with experience in the role of an estate trustee. According to Mr. Wright, Mr. Evely has agreed to function as Estate Trustee and to be a mediator for a fee of $275/hr which I find to be reasonable. The rate is less than the rate for the mediator proposed by Martina Kacin.

[14] Martina Kacin opposes the appointment of an Estate Trustee on the grounds that it is costly and unnecessary given the low complexity of the estate. As presumptively the sole beneficiary of the estate, she takes issue with estate funds paying for an Estate Trustee and proposes instead the appointment of an estate litigator David Thompson as a mediator. Mr. Thompson has indicated he would be available and in his opinion, the parties should proceed to mediation before appointing an Estate Trustee because mediation may result in resolution.

[15] An Estate Trustee allows for a level playing field in managing the affairs and funds of an estate particularly where there are conflicts between the trustee and beneficiaries. Consequently, the appointment of an Estate Trustee during litigation is not an extraordinary measure and the court should refuse such an appointment only in the clearest of cases: Baran v Cranston, 2020 ONSC 589 at para 28.

[16] Upon review of the materials filed, I find that notwithstanding that this is a very modest estate, given the adverse position of the parties, the long-term and elevated level of family conflict between the siblings dating back to their childhood, and their differing views on productions as well as the process and costs for such productions, the appointment of an Estate Trustee is warranted and beneficial in this case.

[17] In addition, the Estate Trustee can ensure that the estate funds are properly invested and that the estate remains in compliance with tax or other filings.

[18] As discussed below, the parties are agreeable to the production and dissemination of the 2011 Will and related solicitor file as well as the deceased’s medical records already obtained by Yelka Kacin. However, the Respondents do not agree on additional production requests being made by Martina Kacin.

[19] Martina Kacin argues that these are “standard productions” in litigation and that the court has discretion to order them pursuant to Rules 30.10 and 75.06. In this regard, counsel relies on the decisions of Taylor v Reid, 2022 ONSC 671 and Bayliss v Burnham, 2023 ONSC 7161. I find, however, that these decisions deal with the production of third party records and involve the court determining whether the test for production has been met, including delineation of the specific records requested, the relevance of those records to the estate litigation, and the position of the third parties on each of the requests. That is not the case here.

[20] Martina Kacin seeks blanket orders for the Respondents to produce an extensive number of financial and other records related to the deceased. However, it is unclear what specific requests have already been made to the Respondents as parties to this proceeding, if those requests were refused, and if they were refused, for what reason.

[21] Furthermore, as the Respondents’ counsel point out, while further productions may be necessary, it would be beneficial for the parties to review the 2011 Will and deceased’s medical records to avoid duplication. This is particularly so given the size of this estate and the need to minimize unnecessary costs and delays. I would agree.

[22] I also find that there is nothing preventing the parties from proceeding with mediation before exhausting all production requests. The appointment of an Estate Trustee does not undermine the ability of the parties to proceed to mediation which appears to be prioritized by all the parties. On the contrary, having a neutral third party manage the productions can ensure mediation will proceed in a timely fashion.

[23] Consequently, there will be an order:

1. for the appointment Brian Evely as Estate Trustee during Litigation and as a Mediator in this proceeding;
2. that Mr. Evely will apply for a certificate of his appointment without security pursuant to Rule 74.10; and
3. that Mr. Evely will reinvest the estate funds as necessary and will pay from the estate funds any taxes and fees to maintain the estate in good standing.

[24] While Yelka Kacin indicates that the amount of the bond may be reduced or dispensed with for the Estate Trustee, I have not been provided any evidence as to why that should be the case here or whether all parties consent: Rule 74.11(1) to (3); Henderson (Re) at paras 11-13. The parties shall provide further submissions on this issue within 15 days of this decision.

Issue 3: What should the process be for the production of documents?

[25] The parties seek production of the following documents:

a. Ms. Coleman’s legal file related to the 2011 Will; and b. The deceased’s medical reports obtained by Yelka Kacin’s counsel.

[26] The parties agree that these records should be produced and that both Ms. Coleman and Ms. Yelka’s counsel should be compensated from estate funds in the amounts they have reasonably identified for the costs of handling, copying and production of those records.

[27] There will be an order that:

4. records (a) and (b) will be released within 30 days of this order to the parties; and
5. the Estate Trustee will reasonably reimburse Ms. Coleman and Mr. Wright from estate funds for the costs of handling, copying and production of those records. Should there be any dispute between the parties on the appropriate compensation for the release of the documents, the Estate Trustee will determine the compensation amount.

[28] As already noted, Martina Kacin seeks further production requests from the Respondents which they oppose. I find the production requests are overly broad. It is unclear what financial records are specifically being sought, why these financial records are relevant, and what has been refused by the Responding parties. I find the court is not in a position based on the materials filed to date to determine whether productions, other than records (a) and (b) as discussed above, are necessary, relevant, and should be produced. This determination would require a more precisely delineated motion which would include the Respondent’s position on each of those requests.

[29] For this reason, I agree with the Respondents that the Estate Trustee should determine further productions. The Estate Trustee is a neutral third party who can manage further production requests keeping in mind the costs and potential delays for production, the need to avoid duplication, and the need to prioritize resolution of this matter.

[30] I also find the Respondent’s proposal for the process to be used for further productions is fair and reasonable in the circumstances. There will be an order that the following procedure will be used for the production of any further documents:

(a) The Initiating Party shall write to Mr. Evely with the request and with an undertaking to pay personally, or to reimburse the Estate, for any reasonable costs incurred in fulfilling it. (b) Mr. Evely shall submit the Initiating Party's request to the other counsel in this proceeding for comment and then submit the comments, if any, to the Initiating Party for further comment. (c) Mr. Evely shall then, on behalf of the estate, relay the Initiating Party's request, as he may revise it in light of the comments received, to the relevant person(s), with an undertaking on behalf of the estate to pay any costs reasonably incurred in fulfilling it. (d) On receipt of the responses and charges, Mr. Evely shall: (i) scan the responses to the Initiating Party on receipt of payment of the charges; and (ii) scan copies to counsel for the other parties at no charge.

Other

[31] The parties have indicated that they are in agreement with a litigation timetable. There will be an order that:

a. Production of Records (a) and (b) shall be made within 30 days of this Order. b. Requests for additional productions to be made to the Estate Trustee within 60 days of this Order. c. Mediation to proceed within 90 days of this Order.

[32] The parties are granted leave to move for further Orders Giving Directions or further interim relief as and when it becomes necessary or advisable.

Order

[33] The parties shall provide a draft Order consistent with this decision. Should the parties wish to add any other terms and conditions mutually agreed upon since the motion hearing, they may include it in the draft Order for my review and signature.

Costs

[34] The Respondent Yelka Kacin is the successful party on this motion with respect to the issue of the appointment of an Estate Trustee and the process for production of further records. The Respondent Edward Kacin did not oppose the motion in any respect. The parties were in agreement on the issues to be addressed at the hearing. The parties are encouraged to resolve the issues of the costs. If unable to, they may file brief written submissions not exceeding two pages exclusive of Bills of Costs. The Respondent shall file their submissions by June 25th, and the Plaintiffs shall file their submissions by July 18, 2024. Costs submissions are to be sent to scj.assistants@ontario.ca and to my attention.

Somji J. Date: June 11, 2024