MacKinnon v. MacKinnon, 2025 ONSC 2426

OSHAWA COURT FILE NOS.: CV-24-00002263-00ES and CV-24-00002264-00ES
DATE: 2025-04-22
SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-24-00002263-00ES
RE: IN THE MATTER OF THE ESTATE OF ROBERT WILSON MACKINNON, deceased
ROBERT WILLIAM MACKINNON, by his litigation guardian BOBBI-JO MACKINNON, Applicant
AND:
KIMBERLY JO-ANNE MACKINNON, Respondent

COURT FILE NO.: CV-24-00002264-00ES
AND RE: IN THE MATTER OF THE ESTATE OF MAXINE ROXELLA MACKINNON, deceased
ROBERT WILLIAM MACKINNON, by his litigation guardian BOBBI-JO MACKINNON, Applicant
AND:
KIMBERLY JO-ANNE MACKINNON, Respondent

BEFORE: R.E. Charney
COUNSEL:
Rebecca Xie, Counsel for the Litigation Guardian of the Applicant, Bobbi-Jo MacKinnon
Kimberly Jo-Anne MacKinnon, Respondent, Self-Represented
George Charles Stirling Morison, Proposed Succeeding Estate Trustee
HEARD: April 10, 2025

Endorsement

[1] This proceeding relates to two Applications, the first brought by the Estate of Robert Wilson MacKinnon (the “Robert Estate”), the second brought by the Estate of Maxine Roxella MacKinnon (the “Maxine Estate”). Each Application seeks an Order passing over or removing the Applicant Robert William MacKinnon and the Respondent Kimberly Jo-Anne MacKinnon as estate trustees of both the Robert Estate and the Maxine Estate, and appointing George Morison of Creighton Law LLP as the Succeeding Estate Trustee for both Estates. This portion of the Application is on consent.

[2] These two proceedings were heard together pursuant to Rule 6.01(1).

[3] The Application relating to the Robert Estate also seeks a declaration that the Codicil of Robert Wilson MacKinnon dated September 27, 2005 together with the Affidavit of Elizabeth Badour, sworn November 9, 2023, satisfies the requirement for the Succeeding Estate Trustee to file “such other evidence in due execution as the court may require” in support of an Application for a Certificate of Appointment of Estate Trustee with a Will. This relief is opposed by the Respondent, Kimberly MacKinnon, who questions the authenticity of the Codicil.

Facts

[4] Maxine Roxella MacKinnon (“Maxine”) died on April 30, 2003. Maxine’s husband, Robert Wilson MacKinnon (“Robert”) died on October 11, 2006.

[5] Maxine and Robert are survived by their two children, the Applicant, Robert William MacKinnon (“William”), and the Respondent, Kimberly Jo-Anne MacKinnon (“Kimberly”).

[6] William suffers from severe dementia and does not have the capacity to manage property or commence legal proceedings.

[7] Bobbi-Jo MacKinnon (“Bobbi-Jo” or “Litigation Guardian”) is William’s daughter, and his attorney for property pursuant to a Continuing Power of Attorney, dated June 17, 2020. Bobbi-Jo has commenced the present proceedings as William’s Litigation Guardian.

[8] In 1981, William acquired a cottage located at 63 Dwire Road, Township of Bangor Wicklow & McClure, Ontario (the “Cottage”), as the sole owner. In or about 1983, William transferred the Cottage to William and Maxine as equal tenants in common. As such, Maxine had a 50% interest in the Cottage at the time of her death.

[9] Maxine left a Will, dated October 23, 1998 (“Maxine’s Will”). Maxine’s Will appointed Robert as Estate Trustee, and William and Kimberly as alternate Estate Trustees. Maxine’s Will bequeathed the residue of her Estate to Robert. Should Robert predecease, Maxine’s Will bequeathed Maxine’s 50% interest in the Cottage to Kimberly, and divided the residue of her Estate equally between William and Kimberly.

[10] Robert’s Will, also dated October 23, 1998 (“Robert’s Will”), mirrors Maxine’s Will.

[11] After Maxine’s death, Robert executed a Codicil, dated September 27, 2005 (“Robert’s Codicil”). Robert’s Codicil bequeaths Robert’s 50% interest in the Cottage, which he inherited from Maxine upon her death in April 2003, to William.

[12] Robert’s Codicil was handwritten by Robert’s sister, Elizabeth Badour, at Robert’s instruction, and was witnessed by two neighbours, Debra Mathison and Robert Mathison (the “Mathisons”). The Mathisons did not sign an Affidavit of Execution for Robert’s Codicil, and the Litigation Guardian and her counsel have been unable to locate the Mathisons. However, Elizabeth Badour was present for the execution of Robert’s Codicil.

[13] Taken together, Maxine’s Will, Robert’s Will, and Robert’s Codicil (collectively, the “Wills”) direct the following distribution of Maxine and Robert’s Estates: (a) the residue of Maxine’s Estate, including a 50% interest in the Cottage, to Robert; (b) Robert’s 50% interest in the Cottage to William; and, (c) the residue of Robert’s Estate, to be divided equally between William and Kimberly.

[14] The Cottage appears to be the only asset of Maxine and Robert’s Estate. They did not own any other real property, and the Litigation Guardian does not know whether Maxine and Robert held any bank accounts, investments or other assets at the time of their death. At the time of their death, they lived with Kimberly in her home.

[15] Neither Maxine nor Robert’s Estate has been fully administered. A Certificate of Appointment of Estate Trustee has not been issued for either Estate, and Maxine remains on title as an owner of the Cottage, despite being deceased for over 20 years.

[16] William, one of the alternate Estate Trustees named in the Wills, is not capable of acting as Estate Trustee.

[17] Kimberly, the other alternate Estate Trustee named in the Wills, indicated to the Litigation Guardian on February 7, 2024 that she would be starting the process to administer Maxine and Robert’s Estates, but stopped communicating with the Litigation Guardian and her counsel soon thereafter. As of the date of hearing this Application, no steps had been taken by Kimberly with respect to the administration of the Estates.

Analysis – Appointment of Succeeding Estate Trustee

[18] Sections 5(1) and 37(1) of the Trustee Act, R.S.O. 1990, c. T.23 grant the Court the authority to remove trustees, including personal representatives, and appoint new trustees to replace them.

[19] Where a named estate trustee has not applied for a Certificate of Appointment of Estate Trustee or otherwise assumed authority to administer the estate, he or she can be passed over by court order. The grounds for passing over an estate trustee are the same as the grounds for removal of an estate trustee: Ford v. Mazmann , 2019 ONSC 542 , at para. 18 .

[20] The Court of Appeal provided guidance on the proper legal test for passing over an estate trustee in Chambers Estate v. Chambers, 2013 ONCA 511 , at paras. 95–96 (citations omitted):

The applications judge was fully alive to the legal principle that the court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee: … Just as a court should remove an estate trustee only on the “clearest of evidence”, so too they should be reluctant to pass over a named executor unless “there is no other course to follow” … As Wright L.J. explained, “passing over of an executor and granting administration to other parties is an unusual and extreme course, though it is within the discretion of the Probate Court” …

Thus, the wishes of the testator will generally be honoured, “even if the person chosen is of bad character”… In fact, an executor named in a will should not be passed over simply because he or she is of bad character or bankrupt, or there is likely to be friction between co-executors … That being said, courts have passed over an executor because he was in a conflict of interest with the estate … or because she had a conflict and was in poor health…

[21] In Sassano v. Iozzo , 2024 ONSC 1517 , Sanfilippo J. summarized the law at para. 14: “Whether in the case of the removal or the passing over of an estate trustee, ‘the Court’s main guide should be the welfare of the beneficiaries’”.

[22] The relief sought by the Applicant is supported by the affidavit of Bobbi-Jo MacKinnon, who deposed that the Estates have not been fully administered despite it being nearly 20 years since Robert’s death. A Certificate of Appointment of Estate Trustee has not been issued for either Estate and real property has not been transferred.

[23] William is now incapable of administering the Estate, and Kimberly has done nothing to administer the Estate despite receiving letters from William’s lawyer and making promises to do so. As indicated, when the Application was heard, Kimberly advised the Court that she consented to the Order to appoint Mr. Morrison as Succeeding Estate Trustee for both Estates.

[24] This case is similar to Kinnear v. White , 2022 ONSC 2576 , where Dawe J. (as he then was) held, at para. 15, that the failure of the appointed estate trustee to take any steps in the administration of the estate although urged to do so, including the failure to apply for a Certificate of Appointment, supported an order that the estate trustee be passed over.

[25] See also: Morrall v. Gordon , 2024 ONSC 5888 , at para. 17 .

[26] Given the amount of time that has passed since Maxine and Robert’s deaths and the potential complexity of administering their Estates as a result, I agree with the Applicant that the appointment of a professional estate trustee is appropriate in the circumstances. As such, an order will go, appointing Mr. Morrison as Succeeding Estate Trustee in accordance with the terms of the draft order filed.

Accounting

[27] The Litigation Guardian does not have any information about Robert’s assets other than his 50% interest in the Cottage.

[28] Given the amount of time that has passed since Robert’s death without the proper administration of the Estate, Kimberly should be required to provide an informal accounting from the date of death of Robert to the date of this Order, including a statement of Robert’s assets on his date of death pursuant to Rule 74.15(1)(d) and any actions that she has taken with respect to the Estates since Robert’s death on October 11, 2006.

[29] When Maxine died, Robert was the estate executor of Maxine’s Estate, and Kimberly should not, therefore, be required to provide an accounting for the period prior to Robert’s death.

The Codicil

[30] An estate trustee or any person appearing to have a financial interest in an estate may make an application under Rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

[31] Pursuant to Rule 74.04(1)(d)(i)(C), a person may seek a Certificate of Appointment of Estate Trustee for a will or codicil that is not in holograph form by filing, among other documents, the original will and any codicils, attached and marked as an exhibit to an affidavit of execution of the will or codicil or, “if each of the witnesses to the will or codicil has died or cannot be found, such other evidence of due execution as the court may require”.

[32] Robert’s Codicil is not in holograph form; rather, it was handwritten by Elizabeth Badour, and executed by Robert in the presence of two attesting witnesses, in accordance with the requirements for valid execution of a Will under s. 4(2) of the Succession Law Reform Act , R.S.O. 1990, c. S.26.

[33] The witnesses to Robert’s Codicil, Debra Mathison and Robert Mathison, did not sign Affidavits of Execution, and cannot be located despite efforts by the Litigation Guardian and her counsel to do so. Elizabeth Badour, who was present for the signing of Robert’s Codicil by Robert and the Mathisons, has sworn an Affidavit attesting to the due execution of Robert’s Codicil on September 27, 2005.

[34] Kimberly has raised concerns about the authenticity of the Codicil, but has provided no evidence to support these suspicions.

[35] In my view, the Affidavit of Elizabeth Badour is sufficient “other evidence of due execution” to be filed together with Robert’s Codicil in Mr. Morison’s application for a Certificate of Appointment of Estate Trustee with a Will for Robert’s Estate, in accordance with Rule 74.04(1)(d)(i)(C).

Conclusion

[36] Court File No.: CV-24-00002263-00ES, ESTATE OF ROBERT WILSON MACKINNON: Judgment to go per draft judgment.

[37] Court File No.: CV-24-00002264-00ES, ESTATE OF MAXINE ROXELLA MACKINNON: Judgment to go per draft judgment, except that paras. 9 and 10 are deleted, and para. 11 is amended by deleting “April 30, 2003” and substituting “October 11, 2006”.

Costs

[38] The modern approach to costs in estates litigation was set out by the Court of Appeal in Sawdon Estate v. Sawdon , 2014 ONCA 101 , at paras. 84 -86 :

[T]he court is to carefully scrutinize the litigation and, unless it finds that one or more of the relevant public policy considerations apply, it shall follow the costs rules that apply in civil litigation. That is, the starting point is that estate litigation, like any other form of civil litigation, operates subject to the general civil litigation costs regime established by s. 131 of the Courts of Justice Act , R.S.O. 1990, c. C.43 and Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 , except in those limited circumstances where public policy considerations apply.

The public policy considerations at play in estate litigation are primarily of two sorts: (1) the need to give effect to valid wills that reflect the intention of competent testators; and (2) the need to ensure that estates are properly administered. In terms of the latter consideration, because the testator is no longer alive to rectify any difficulties or ambiguities created by his or her actions, it is desirable that the matter be resolved by the courts. Indeed, resort to the courts may be the only method to ensure that the estate is properly administered.

In any event, where the problems giving rise to the litigation were caused by the testator, it is appropriate that the testator, through his or her estate, bear the cost of their resolution. In such situations, it ought not to fall to the estate trustee to pay the costs associated with having the court resolve the problems. As Kruzick J. observed in Penney Estate v. Resetar , [2011] O.J. No. 490, 2011 ONSC 575 , 64 E.T.R. (3d) 316 (S.C.J.), at para. 19 , if estate trustees were required to bear their legal costs in such situations, they might decline to accept appointments or be reluctant to bring the necessary legal proceedings to ensure the due administration of the estate .

[39] In the present case, the litigation was necessary to ensure the due administration of the Estate because neither of the named trustees did anything in many years to properly administer the Estate. After many years of inaction, the Applicant became unable, and the Respondent remained unwilling.

[40] While the Respondent finally consented to the Order appointing a Succeeding Estate Trustee, her consent did not come until the hearing. Until that time, she opposed the Application, which increased the costs for the Estate.

[41] In these circumstances, the Applicant proposes that the costs be paid on a full indemnity basis as follows:

(a) $14,564.43, payable by the Respondent, Kimberly Jo-Anne MacKinnon, personally; and,
(b) $14,564.43, payable out of the Estate of Robert Wilson MacKinnon.

[42] The Applicant points out that, since the only known asset in the Estate is the Cottage, the portion paid by the Estate will likely come exclusively from William, since the Codicil makes him the sole owner of the Cottage.

[43] I accept the Applicant’s position as a fair and reasonable allocation of the costs of this litigation.

[44] Costs are fixed in accordance with para. 14 of the draft judgment on a full indemnity basis to be paid as follows:

(a) $14,564.43, payable by the Respondent, Kimberly Jo-Anne MacKinnon, personally; and,
(b) $14,564.43, payable out of the Estate of Robert Wilson MacKinnon.

Justice R.E. Charney
Date: April 22, 2025