Court File and Parties

COURT FILE NO.: CV-22-00680998-00ES DATE: 20240916 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE MATTER OF THE ESTATE OF SHIRLEY LORETTA MILNER, deceased

BETWEEN:

JOHN JAMES MILNER, Applicant

AND:

GREGORY PAUL CORDNER MILNER, JORDAN MILNER, MADISON MILNER and RILEY MILNER, Respondents

BEFORE: M. D. Faieta J.

COUNSEL: Aaron Gideon, for the Applicant Josh Cohen, Respondent Gregory Paul Cordner Milner No one appearing for the Respondents Jordan Milner, Madison Milner and Riley Milner

HEARD: February 29, 2024

Endorsement

faieta J.

[1] The applicant seeks, amongst other things, an order that the deceased lacked testamentary capacity at the time she made her last Will and that she was unduly influenced by the respondent in making the Will. For the reasons described below this application is dismissed.

Background

[2] Shirley Loretta Milner (“Shirley” or “the deceased”) was a widow at the time of her death on October 18, 2021, a few days before her 95th birthday. Shirley was predeceased by her husband and was survived by her two adult children, namely, the applicant, John Milner (“John” or “the applicant”), and the respondent Greg Milner (“Greg” or “the respondent”), as well as Greg’s adult children, Jordan, Madison and Riley Milner.

[3] Shirley’s resided at 3 Kellogg Street, Toronto until about two years before her death.

[4] In about 2016, Shirley’s physical health was deteriorating, and she relied on others for assistance. Jordan moved with Shirley. He provided caregiving services to her – for instance, he accompanied Shirley to her appointments. Madison, a registered nurse, also provided such services to Shirley as she regularly visited Shirley and assisted with her care as needed.

[5] On May 17, 2018, Shirley executed a Continuing Power of Attorney for Property (“CPAP”), a Power of Attorney for Personal Care (“PAPC”) and her Last Will and Testament. These documents were drafted by her lawyer, Tyrone Crawford, and executed by Shirley at his office. Under her CPAP and PAPC, Shirley appointed Greg as her attorney.

[6] The material terms of Shirley’s Last Will and Testament dated May 17, 2018, are as follows:

(a) Greg is appointed as the Estate Trustee. (b) The Will creates a separate trust in the amount of $72,204.22 to pay the net income of such amount to John during his lifetime provided the circumstances indicate, in the sole discretion of the estate trustee, a need for same. (c) The residue of the Estate is divided into three equal shares as between John, Greg and Greg’s children.

[7] In 2019, it became too difficult for Shirley to live on her own as she had mobility issues and difficulty walking on her own. She also suffered from dysphagia (swallowing issues) and was eventually placed on a pureed/thickened fluid diet. Shirley required around the clock care but she refused to move to a long-term care facility. As a result, Shirley moved into Greg’s home and lived with Greg and his family from 2019 until her death. Greg became Shirley’s primary caregiver.

[8] Greg states that Shirley continued to manage her own property and that he would merely act as her agent from time to time. He states that any and all financial transactions were made in consultation with her.

[9] After moving in with Greg, Shirley expressed an interest in having the main floor of her home repaired and renovated in order to rent the main floor. Over the next two years, Greg refinished the basement as well as one bathroom, installed new appliances and upgraded the electrical panel. In September 2021, the main floor of Shirley’s home was rented for $2,700.00 per month for one year. Since September 2022, the home has not been leased.

[10] There is no dispute that John has been estranged from Shirley for many years and that he re-entered her life in about 2019. John asked the Toronto Police Service to conduct a wellness check in 2020 and 2021.

[11] At the time of her death, her Estate held the following assets:

(a) Her principal residence, municipally known as 3 Kellogg Street, Toronto (“the Property”). It had an estimated value of $1.5 million at the time of death. (b) A Scotiabank savings account (“Savings Account”) in the amount of $491,723.35. (c) A Scotiabank chequing account (“Chequing Account”) in the amount of $1,869.04. (d) A Scotiabank iTrade TFSA account with a balance of $61,361.00. (e) A Scotiabank iTrade regular account with a balance of $263,214.00. (f) A Scotiabank RRIF account with a balance of $2,018.37. (g) A Scotiabank USD daily interest account with a balance of $2,0151.36.

[12] The following assets passed outside of Shirley’s Estate:

(a) An RESP with a balance of $59,491.81 which designed Jordan, Madison and Riley. (b) A life insurance policy with Foresters Financial in the amount of $8,000.00 which designated John and Greg.

[13] Greg brought an Application for a Certificate of Appointment of Estate Trustee with a Will.

[14] On November 1, 2021, John filed a Notice of Objection on grounds of lack of testamentary capacity, undue influence, suspicious circumstances, and unfitness to act as estate trustee. John states that Shirley made an earlier will that appointed Scotiabank as co-trustee and that divided the residue of her Estate between John and Greg rather than between John, Greg and Greg’s children.

[15] On May 11, 2022, John commenced this Application for Directions for, amongst other things:

(a) An order setting aside the Last Will on the basis that Shirley lacked testamentary capacity and/or was unduly influenced by Greg. (b) An order requiring Greg to pass his accounts from May 17, 2018, onwards, in his capacity as both an Attorney for Property and as Estate Trustee (c) An order that Greg be removed as Estate Trustee.

[16] On June 21, 2022, Osborne J. granted a consent Order which includes the following provisions:

(a) The parties may compel production of any and all of Shirley’s financial and medical records, which including copies of her income tax returns. (b) The parties may compel production of any and all of Tyrone Crawford’s notes, records, and files.

[17] On August 22, 2022, Greg delivered a Responding Application Record.

[18] On April 18, 2023, Greg delivered a Supplementary Responding Application Record. At that time, Greg delivered an informal accounting which included bank account statements/summaries for all of Shirley’s accounts from May 17, 2018 onwards.

[19] By Order of Dietrich, J. dated April 28, 2023, John was to deliver any further materials within 14 days. This deadline was extended twice to August 3, 2023.

[20] Cross-examinations on the affidavits of John and Greg were completed on August 30 and 31, 2023.

[21] On October 25, 2023, the parties attended mediation.

[22] The examination for discovery of Tyrone Crawford, being the lawyer who drafted the Will, was completed on November 3, 2023.

[23] On January 11, 2024, John delivered a Supplementary Application Record.

[24] Jordan, Madison and Riley have not filed Notices of Appearances, nor have they participated in this Application in any way.

John’s Evidence

[25] The only affidavit evidence filed by John are his two affidavits.

[26] In his affidavit sworn May 11, 2022, John states:

(a) He heard Greg tell Shirley that “… he was going to arrange for a lawyer to change her will, and that she should not ask the lawyer any questions and just agree to everything and sign”. (b) Greg spoke to Mr. Crawford “and gave all the instructions to remove Scotiabank as co-executor and to reduce my interest from one-half to one-third”. (c) Shirley told him that “… Greg forced her to change her prior will”. (d) Greg told Shirley “… not to question the making of a new will and to tell the lawyer that she understood everything and agreed …”. (e) At the time she executed the Will, Shirley was taking strong thyroid medication which along with her medical condition affected her testamentary capacity. (f) Greg prevented John from visiting Shirley. (g) Greg installed a 24-hour video camera in Shirley’s room in Oakville to prevent her from communicating with John and others. (h) Shirley called the police many times alleging that Greg was abusing her. (i) Shirley suffered from bed sores while living at Greg’s home in Oakville.

[27] In his supplementary affidavit sworn January 8, 2024, John states that Shirley did not have knowledge of the effect of the Will and the Powers of Attorney that she signed on May 17, 2018. John states that on February 13, 2020, he made an audio recording of his conversation with Shirley wherein she stated that she was not aware that Greg had been appointed as her attorney for property and personal care. He also states that Shirely appeared confused and uncertain with respect to the arrangement of her testamentary affairs.

Greg’s Evidence

[28] In his affidavit sworn August 22, 2022, Greg states:

(a) Mr. Crawford prepared at least five wills, on June 13, 2013, July 30, 2015, March 24, 2016, May 4, 2016, and June 14, 2016, prior to her last Will signed on May 17, 2018. All five of these Wills appointed Greg and Shirley’s friend, Lillina Dutka, as co‑estate trustees. In all five of these Wills there were specific bequests of personal property such as jewelry to Greg, John, Madison and/or Riley. Each of these Wills left a cash legacy for John ranging between $67,250.00 and $72,204.22, to be held in a fully discretionary trust on his behalf. In each of these wills, the residue of the Estate was always to be divided as follows: 25% to Greg, 25% to Greg’s children and 50% to John with John’s share to be held in a fully discretionary trust on his behalf. Upon John’s death, the balance in the trust, if any, was to be divided between Greg and his children. Thus, in each of the five wills prior to her last Will signed on May 17, 2018, John’s share of the Estate was to be held in a full discretionary trust subject to absolute and unfettered discretion of the trustee(s). (b) Greg denies that John’s allegations that he asked his mother to sign the last Will. (c) There is no independent evidence that Shirley was being neglected by Greg or that she contacted the police. John asked the Halton Regional Police Service to conduct a wellness check at least twice. His concerns regarding elder abuse were found to be without merit. (d) A police report dated June 23, 2020, states that “Shirley has her own room equipped with a hospital style bed and access to a landline telephone. Her bathroom, approximately 10 feet from the bedroom is also equipped with handicap attachments making accessibility simple. Both rooms were tidy and in order. Shirley has three personal support workers who attended the residence daily for 2 hours in the morning, 1.5 hours in the afternoon, and 1.5 hours in the evening. Gregory advised that he is renovating 3 Kellogg, Toronto so it can be rented to cover the rising costs of Shirley’s around the clock care. Elder abuse was briefed on the situations and this occurrence can be closed pending the receipt of new information”. (e) A police report dated April 20, 2021, states that Greg called the police as John was at his home late that evening. Shirley was asleep as John refused to leave as he wished to sleep next to her. (f) A police report dated April 29, 2021, states that John contacted the police to request that they could a wellness check as Shirley was not answering her telephone. At 2:20 pm, the police found Shirley in her bedroom and able to communicate with police. She had a telephone on her lap and was attempting to contact Greg. Police contacted Greg on her behalf, and Greg stated that he would return within 30 minutes. The police found that no further action was required.

The Solicitor’s Evidence

[29] Mr. Crawford’s undated notes from his meeting with Shirley on May 17, 2018, state as follows:

• Refer to the last 7 wills
• X is lucid & competent
• X drove her car to the office
• X is afraid John will have a short life
• X wants the $72,000 to be held in trust over time & have him ineligible for benefits
• The rest his 1/3 share to be paid directly
• Her grandchildren are the ones who truly care for her
• Doesn’t want to itemize personal belongings.

[30] At his examination, Mr. Crawford stated:

(a) He had drafted seven wills for Shirley since 2010. (b) On May 17, 2018, Shirley attended his office to change her will. They met for one hour. (c) Shirley expressed strong feelings about her son John who was on ODSP in relation to a mental health disorder. She felt that John would have a short life and wanted to receive his share of the residue of her estate directly rather than in a trust. Shirley also indicated that she wanted Greg to be the sole estate trustee. She did not explain, nor did he ask, why she wanted to remove her friend as an estate trustee. (d) He had no reason to question Shirley’s testamentary capacity during his observations of her since 2010. On that day, she gave no indication by her comportment or otherwise to be concerned. During their meeting, Shirley got to the point in terms of what changes she wanted to her will. (e) Shirley reviewed and approved of a draft copy of the revised Will. A final copy of the Will was made, and Shirley signed that copy. (f) Mr. Crawford explained that the bequest of about $72,000 to John was because she wanted to make things even between her sons as she had given that amount to Greg earlier. (g) Mr. Crawford was not contacted by Shirley again. (h) Mr. Crawford thought that Shirley had driven herself to his office that day but indicated he may have been confused on that point given Greg’s evidence that he drove Shirely to Mr. Crawford’s office.

The Law

[31] In Scott v. Cousins, [2001] O.J. No. 19, Cullity J. summarized the principles with respect to the burdens of proof and the applicable presumptions to prove a will as follows:

37 It is notorious that the location of the burden of proof is of unusual importance in cases of contested wills. Evidence of a deceased person's knowledge and approval, testamentary capacity or capitulation to undue influence is often indeterminate where it is not entirely lacking. Even on the issue of due execution, there may be an absence of witnesses available to testify. For this reason, past decisions are replete with references to the burden of proof on particular issues and to presumptions that will arise if certain facts are proven. …

39 The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
2. A person opposing probate has the legal burden of proving undue influence.
3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (at page 227)
5. This presumption "simply casts an evidential burden on those attacking the will." (ibid.)
6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances - namely, "evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder." (ibid.)
7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will: It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)

[32] I adopt the following views expressed by Dietrich J. in Silano v. Silano, 2019 ONSC 2776:

26 A will is only valid to the extent that the testatrix knew and approved its contents. As a result, a court may strike out passages or phrases in a will that have been inserted by mistake where it can be demonstrated that the testatrix did not intend or approve those words: See Balaz Estate v. Balaz, [2009] O.J. No. 1573 (Ont. S.C.J.) ("Balaz Estate") at para. 7, citing with approval Barylak v. Figol, [1995] O.J. No. 3623 (Ont. Gen. Div.), paras. 25 and 26 and Feeney's Canadian Law of Wills (Fourth Edition), § 3.28.

27 In Balaz Estate, Justice Brown, as he then was, confirms, at para. 9, that: "[t]he Superior Court of Justice exercises exclusive jurisdiction in testamentary matters — it grants probate and interprets wills." At para. 10, Justice Brown states: "Suffice it to say, where a court seeks to ascertain whether the testatrix knew and approved of certain language in her will, it can take account of the evidence about the circumstances surrounding the making of the will, including referring to earlier wills or drafts of the particular will, as well as direct evidence of her intention [citations omitted]."

28 As set out in Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.), at para. 26, if a will is duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

29 However, the presumption may be rebutted by evidence of suspicious circumstances relating to one or more of: (i) circumstances surrounding the preparation of the will; (ii) circumstances tending to call into question the capacity of the testator; or (iii) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout v. Hay, para. 25. Where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval: Vout v. Hay, para. 27.

30 As stated in Neuberger Estate v. York, 2016 ONCA 191 (Ont. C.A.): "Vout v. Hay established that if such evidence is adduced, the legal burden reverts to the propounder." To discharge the burden of proof, the propounder must dispel the suspicious circumstances.

31 Suspicious circumstances are pieces of evidence which go to a testator's knowledge and approval. It is the onus of the propounder of the will to dispel all suspicion arising from them before the Court will grant probate: Sguigna Estate, Re, 1994 CarswellOnt 2700, 47 A.C.W.S. (3d) 1132 (Ont. Gen. Div.), at paras. 6-7.

Analysis

[33] John submits that:

• Shirley lacked testamentary capacity at the time that she made the Will.
• Shirley was unduly influenced by Greg to make the Will.
• The Will was made under suspicious circumstances.
• Greg should be removed as Estate Trustee.
• Greg should pass his accounts both in his capacity as attorney for property and as Estate Trustee.

Issue #1: Was the Last Will Duly Executed?

[34] The Respondent’s position is that the Will was executed in accordance with the requirement under sections 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26 given that: (1) on its face, it was signed in the presence of two witnesses including Mr. Crawford; (2) on his examination for discovery, Mr. Crawford confirmed that he witnessed Shirley’s signature. This position is not challenged by the Applicant.

[35] Accordingly, it is presumed that Shirley had knowledge and approval of the contents of the Will and that she had testamentary capacity at the time that she executed the Will.

Issue #2: Was the Will Made Under Suspicious Circumstances?

[36] The Applicants submits that there were suspicious circumstances surrounding the preparation of the Will and that, in particular, Mr. Crawford’s notes were deficient and that he could not have determined whether Shirley had a “sound disposing mind” as he did not obtain sufficient information from the her with respect to her medical condition, the medications she was taking, her precise assets and how those assets were to be disposed of pursuant to the Will.

[37] There is no medical or other evidence that Shirley was mentally incapable in or around the time that the Will was executed. This Will was the last of many wills that Mr. Crawford had prepared for Shirley since 2010. Mr. Crawford found Shirley to be “lucid and competent” and that she had acted like she always had. Shirley had not been diagnosed with dementia or any other disease that might impact her capacity. In July 2018, two months after Will was executed, the medical records show that Dr. Hussain-Autenreid found that Shirley was capable of making a decision as to whether to co-sign a mortgage.

[38] The Applicant submits that the fact that Shirley had failed to sign his notes and that Greg drove Shirley to the appointment raises suspicious circumstances. Mr. Crawford testified that sometimes his clients signed his notes and other times they did not. Further, there is nothing, in and of itself, untoward for an adult child to drive their 90 plus year-old parent to a lawyer’s office: Johnson v. Johnson, 2022 ONCA 682, at para. 14.

[39] Finally, the fact that the Applicant’s position under the Will arguably improves as he receives an outright gift of one third of the residue of the Estate rather than a Henson Trust undermines the submission that there were suspicious circumstances surrounding the making of the Will.

[40] I find that the Will was not made under suspicious circumstances.

Issue #3: Did Shirley Lack Testamentary Capacity at the Time That She Executed the Last Will?

[41] The Applicant asserts that Shirley lacked testamentary capacity at the time that she executed the Will. However, aside from his own evidence there is no evidence to support this claim.

[42] In Orfus Estate v. Samuel & Bessie Orfus Family Foundation, 2011 ONSC 3043, aff’d 2012 ONCA 225, Penny J. stated, at para. 104, that:

Testamentary capacity is established where the testator:

(i) understands the nature and effect of a will; (ii) recollects the nature and extent of his or her property; (iii) understands the extent of what he or she is giving under the will; (iv) remembers the people he or she might be expected to benefit under his or her will; and (v) understands the nature of the claims that may be made by persons he or she is excluding under the will.

[43] The evidence before this court, particularly that of Mr. Crawford described above, shows that the requirements were satisfied. The changes to the Will largely reflected Shirley’s concern regarding John’s health. In that light, the changes were rational.

[44] The fact that Shirley’s family doctor, Dr. Irene Hussain-Antenreid, referred her to Dr. Tal for capacity assessment on July 31, 2018, is of no assistance as there is no evidence of whether this assessment took place. Her referral letter, which does not reflect any concern with mental capacity, states:

… kindly see this 92 year old regarding competency to make financial decisions. The son of Shirley has intentions to buy a house and Shirley would like to cosign on that mortgage. She seems able to communicate with people younger and older than herself, and able to weigh the decision to be a title holder for this mortgage application. However, she would like you to formally test her, if you agree.

[45] On February 19, 2020, being about two years after the Will was signed, a nurse noted that Shirley had “a little bit of confusion intermittently”.

[46] I find that the Applicant has failed to rebut the presumption that Shirley had testamentary capacity at the time that the Will was executed.

Issue #4: Was There Undue Influence in Respect of the Preparation and Execution of the Last Will?

[47] In Orfus Estate, Penny J. stated at paras 252-254:

252 The burden of proof to demonstrate that the 2004 Wills or Codicil were procured by undue influence rests with [the applicant].

253 That burden of proof must be met on "a balance of probabilities and even a well‑grounded suspicion of undue influence will not, per se, discharge [that] burden": …

254 The threshold to prove undue influence is high. Demonstrating the existence of persuasion or even 'bad influence' is not sufficient. Actual coercion through the "effective domination" of the testator's (free) will by that of another must be demonstrated: …

[48] John’s uncorroborated evidence that Greg unduly influenced Shirley in making her Will is as a result of the operation of s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, even if accepted, is an insufficient basis to find that Greg unduly influenced Shirley in making her Will: See Orfus Estate v. Samuel & Bessie Orfus Family Foundation, 2013 ONCA 225, paras. 72-73. There is no independent evidence that Shirley was unduly influenced by Greg in making the Will. I find that John has failed to meet the high evidentiary threshold required to prove that Greg unduly influenced the making of the Will.

Issue #5: Should Greg Pass His Accounts, Either in His Capacity as Attorney for Property and/or Estate Trustee?

[49] Subsection 42(1) of the Substitute Decisions Act, 1992, S.O.1992, c.30, states:

The court may, on application, order that all or a specified part of the accounts of an attorney or guardian be passed.

[50] In McAllister Estate v. Hudgin, [2008] O.J. No. 3282, Patillo J. stated at para. 13:

Section 42 of the Act is clearly discretionary. In my view, in exercising such discretion in circumstances where a power of attorney is utilized in the absence of a requirement under the Act for the attorney to keep accounts, the court should consider two main questions: first, the extent of the attorney’s involvement in the grantor’s financial affairs and second whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting.

[51] The evidence shows that Shirley was mentally capable of managing her own property and that she did manage her own property. The evidence shows that Shirley managed her own finances from the time when the CPAP was signed. Once her physical health declined and she moved into Greg’s home, he assisted Shirley with the management of her financial affairs and that generally they were made in consultation with her.

[52] The balance of Shirley’s investment account was reduced from $737,917.77 on March 31, 2019, to $489,826.57 on July 17, 2023. Greg provided an informal accounting from May 18, 2018, until the date of Shirley’s death of all of Shirley’s accounts. It shows that as of May 18, 2018, the account was valued at about $640,000 and that at the date of her death, it had a value of about $490,000.00. The decrease was the result of various factors including the volatility of the stock market, the significant renovations of about $100,000 that were performed on Shirley’s home, and Shirley paying down the principal on a personal line of credit. The fact that Greg was unable to explain the purpose of two withdrawals made prior to Shirley’s death (one of $43,790.52 and the other of $20,590.58) does not raise significant concern regarding the management of Shirley’s affairs sufficient to warrant the expense of a formal passing of accounts.

Issue #6: Should Greg Be Removed as Estate Trustee?

[53] The legal principles for the removal of an Estate Trustee were summarized by Sanfilippo J. in La Calamita v. La Calamita, 2024 ONSC 4219, as follows:

[94] Sections 5 and 37 of the Trustee Act, R.S.O. 1990, c. T.23 (the “Trustee Act”) provide the Court with authority to remove a trustee and appoint another trustee in their place. Furthermore, the Court has the inherent jurisdiction to remove trustees.

[95] The principles that guide the court’s analysis of whether to remove an estate trustee are well-established and may be summarized as follows:

(a) The court will remove the estate trustee only if doing so is clearly necessary to ensure the proper administration of the trust. (b) The court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee. The wishes of the testator will generally be honoured “even if the person chosen is of bad character”. (c) A court should remove an estate trustee only on the “clearest of evidence” and should be reluctant to pass over a named estate trustee unless “there is no other course to follow”. (d) Even if an estate trustee has not executed their functions perfectly or ideally, “that is not the test”. The test is whether the estate is likely to be administered properly in accordance with the fiduciary duty of the trustee and for the benefit of the beneficiaries. (e) Friction alone between co-executors is not itself reason for removal. For friction to be the basis for removal, it must rise to a level that prevents the proper administration of the estate. (f) Passing over an executor is an “unusual and extreme course”. It has been described as an “extreme remedy” and one of “last resort”. (g) Past misconduct may justify removal if that misconduct is likely to continue in the future. Removal is not intended to punish, but to protect the Estate assets and the interests of the beneficiaries. (h) The Court’s main guide should be the welfare of the beneficiaries.

[96] The Court of Appeal instructed in Chambers, that “[a]n executor is removed after he or she has received a certificate of appointment, whereas an executor is passed over before the issuance of such a certificate”. The Court of Appeal continued: “[p]ut another way, a person is removed as estate trustee after he or she has assumed authority to administer the estate, whereas a person is passed over as estate trustee prior to having assumed authority to administer the estate.” [Footnotes omitted]

[54] The request for this relief was not pursued at the hearing of this application. I find that Greg should not be removed as estate trustee as John has not adduced any evidence to justify this court’s interference with Shirley’s choice of Greg as estate trustee.

Decision

[55] This application is dismissed. Greg shall deliver his costs submissions within ten days. John shall deliver his responding costs submissions within twenty days. Greg may deliver reply costs submissions within thirty days. Each submission shall be no more than three pages exclusive of a bill of costs and any offers to settle.

Mr. Justice M. D. Faieta Released: September 16, 2024