Court File and Parties

COURT FILE NO.: CV-24-00722137-00ES DATE: 20241009 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF MIROSLAWA MYRA BERNAT, also known as Myra Bernat

RE: VIOLETTA BIELAK, ESTATE TRUSTEE FOR THE ESTATE OF MIROSLAWA MYRA BERNAT, also known as Myra Bernat, Applicant AND: ALFRED BERNAT also known as FRED SAMSON, Respondent

BEFORE: M.D. Faieta, J.

COUNSEL: Jesse Porter, for the Applicant No one appearing for the Respondent

HEARD: October 9, 2024

Endorsement

[1] The deceased died on January 16, 2022. The applicant, Violetta Bielak, was a friend of the deceased, Miroslawa Myra Bernat. In April 2023, the Office of the Public Guardian and Trustee advised the applicant that it was in possession of an original copy of the deceased’s Will. The Will, dated April 13, 2018, provides that ¾ of the residue of the estate shall be given to the deceased’s niece, Anna Miroslawa Bernat and that ¼ of the estate shall be given to the applicant.

[2] The respondent is the deceased’s brother. The respondent was served with notice of today’s scheduling appointment by email but did not attend.

[3] On June 30, 2023, the applicant filed an Application for a Certificate of Appointment of Estate Trustee With a Will. On July 20, 2023, the respondent filed a Notice of Objection. On August 24, 2023, the respondent filed a Notice of Appearance. From these documents it appears that the respondent takes the position that the “Will is fake” and that as “first kin”, he is entitled to the assets of the estate.

[4] The applicant brings this application pursuant to Rule 75.06 for, amongst other things, an order setting aside the Notice of Objection and an order directing the Superior Court of Justice to issue a Certificate of Appointment of Estate Trustee to the applicant on an expedited basis.

Analysis

[5] Rules 75.03(1) and (2) of the Rules of Civil Procedure state:

(1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the court a notice of objection (Form 75.1), signed by the person or the person’s lawyer, stating the nature of the interest and of the objection.

(2) A notice of objection expires three years after it is filed and may be withdrawn by the person who filed it at any time before a hearing for directions under rule 75.06 in an application for the certificate or may be removed by order of the court. [Emphasis added]

[6] Standing to challenge a will is not automatic. While a beneficiary under a will clearly has a financial interest in an estate, a discontented relative that is not a beneficiary under a will must come forward with more than a baldly asserted claim against the estate. Thus, if challenged, a person asserting a financial interest in an estate on the grounds that they are a beneficiary under another will or on an intestacy, or a claim against the estate as a dependant within the meaning of Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) must “… present sufficient evidence … [that] is capable of supporting an inference that the claim raises a genuine issue and thus is one that should be heard”: Smith v. Vance, [1997] O.J. No. 6534, at paras. 10-11 (Div. Ct.). The onus rests with the person that has filed a notice of objection to adduce “… some evidence to call into question the … evidence adduced by the respondent to establish the validity of [the will].”: Moses v. Moses, 2021 ONCA 662, para. 9.

[7] In this case, the applicant has provided an affidavit that shows that the Will was prepared by a lawyer, and the deceased’s signature was witnessed by the drafting lawyer and another member of his law firm. The applicant submits that the will complies with all of the necessary formalities under the SLRA. Nevertheless, the respondent asserts that the Will is “fake” and has not provided evidence in support of this assertion. The issue of the respondent’s standing should be determined.

Order

[8] Order to go as follows:

(1) The hearing of this application shall be heard on December 3, 2024, at 9:00 am, before me for up to 30 minutes.

(2) By November 12, 2024, the respondent shall deliver an affidavit that provides all the evidence that he has to support his assertion that the deceased’s signature on the will is “fake” or otherwise invalid.

(3) By November 26, 2024, the applicant may deliver her responding affidavit, if any.

(4) Each party shall deliver a factum by November 29, 2024.

(5) Given that the respondent’s whereabouts are unknown, the applicant shall serve this Endorsement and any other materials on the respondent by text message and email.

(6) This Order is immediately effective without it being formally issued and entered.

M.D. Faieta, J.

Date: October 9, 2024