Court File and Parties

Court File No.: CV-25-99786 Date: 2025-08-15 Superior Court of Justice – Ontario

In the Estate of Keith Ronald Eaman, deceased

Application Under Sections 5, 16, and 37 of the Trustee Act, R.S.O. 1990, c. T.23 and Rule 75.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Re: Laura Eaman, Applicant And: Janice Banford, Respondent

Before: The Honourable Justice C.T. Hackland

Counsel:

• Miriam Vale Peters, counsel for the Applicant
• Susanne Sviergula, counsel for the Intervenor Douglas Grenkie
• No one appearing for the Respondent

Heard: June 16, 2025 (Ottawa)

Endorsement

HACKLAND J.

Background and Facts

[1] The Applicant Laura Eaman ("Ms. Eaman") seeks an order that she be appointed as "succeeding estate trustee" of the Estate of her late father Keith Ronald Eaman, who passed away on July 9, 2021. The respondent Janice Banford, the Estate Trustee appointed under the late Mr. Eaman's will was a friend and neighbour of the late Mr. Eaman. Ms. Banford previously assumed the duties of estate trustee, fully administered the Eaman estate and subsequently resigned as estate trustee on July 25, 2023. She takes no position in this Application.

[2] Ms. Eaman was not named in her father's will, either as estate trustee or beneficiary. She contends her father's lawyer Douglas Grenkie took instructions from her father to prepare his will and a subsequent codicil at a time shortly before her father's passing when he was ill and in hospital and lacked testamentary capacity.

[3] Mr. Grenkie has deposed that the late Mr. Eaman instructed him that he and his daughter Laura Eaman were estranged and that there were no family members he wished to include in his will. He wished to leave his estate to his second wife, Judi, who at the time was ill and in hospital as well. Mr. Eaman's will was signed on June 28, 2021 in which he named Judi as his estate trustee and sole beneficiary. His second wife Judi died several days after this will was executed. Mr. Eaman then executed a codicil, leaving his estate to his friend Janice Banford, and also appointed her his estate trustee. This codicil, which was also drawn by Mr. Grenkie, was executed on July 8, 2021, in Mr. Grenkie's presence. Mr. Eaman passed away the following day, on July 9, 2021.

[4] In November 2021, Ms. Eaman commenced a will challenge proceeding under a separate court file number ("the previous application"), alleging that the Will and Codicil of her late father were invalid due to a lack of testamentary capacity, undue influence, suspicious circumstances, and lack of knowledge and approval. The parties to the previous application were Ms. Eaman as applicant and Janice Bamford Estate Trustee, as respondent. On January 24, 2022 Champagne J. signed an Order for directions (on consent) in the previous application. Relevant documentation was subsequently exchanged and Mr. Grenkie was examined pursuant to that order.

[5] The previous application was settled by Minutes of Settlement dated March 17, 2023. Under these Minutes of Settlement the residue of the estate was paid to Ms. Eaman, not to Ms. Banford. The matter of the testator's testamentary capacity was not addressed in the settlement. The parties also released each other from all claims related to the estate.

[6] On June 14, 2023, Ms. Eaman commenced an action against Mr. Grenkie and his law firm, alleging negligence in the preparation of the 2021 testamentary documents. I will refer to this 2023 action commenced by Ms. Eaman as the "lawyers negligence action". It is action CV-23-92418 and is currently scheduled to be tried in March of 2026, as a Rule 76 proceeding.

[7] The damages in the lawyers negligence action are largely restricted to Ms. Eaman's legal costs (her lawyer's bills of approximately $65,000) incurred by Ms. Eaman personally, from the previous application. I would observe the Minutes of Settlement in the previous application did not provide Ms. Eaman with compensation for her legal costs, although, as noted, it awarded her the entire residue of her late father's estate and included a mutual release between her and the estate.

[8] The pleadings in the lawyers negligence action reflect that an important issue may be whether Mr. Grenkie owed any duty of care to Ms. Eaman. Mr. Grenkie contends he only owed a duty of care to his own client (her father), from whom he received testamentary instructions. As the Statement of Claim in the lawyers negligence action currently stands, Ms. Eaman is the sole plaintiff, in her personal capacity and the defendants are Mr. Grenkie and his law firm. However, there is a motion pending in the lawyer's negligence action by which Ms. Eaman seeks to have herself added as a party plaintiff in the capacity of estate trustee of Mr. Eaman's estate, claiming the same damages on behalf of the estate as she is claiming personally. Again, this present application seeks to have Ms. Eaman appointed by this court as estate trustee of her late father's estate.

[9] Ms. Eaman's Notice of Application herein includes these references: (i) The Applicant seeks to be appointed as estate trustee particularly in respect of the Action; (k) The Estate has an interest in the action and there is no executor or administrator of the estate; and (l) Ms. Eaman seeks to represent the Estate for the purpose of the action. The references to "the action" refer to the lawyers negligence action. This highlights the issue of whether the estate has any remaining interest in the lawyers negligence action in which Ms. Eaman is seeking recovery of the legal fees she incurred for her representation in the previous application, which ended with the March 2023 Minutes of Settlement.

[10] Mr. Grenkie seeks leave to intervene in the present application to oppose Ms. Eaman's application to be appointed Estate trustee of her late father's estate. He contends Ms. Eaman's sole purpose in issuing this application is to try and create a relationship giving rise to a duty of care between herself and Mr. Grenkie, as the lawyer who drafted her father's will. The premise is that the status of estate trustee will create a duty of care owed by Mr. Grenkie to her or to the estate, such that she can pursue a claim in negligence against him to recover her legal expenses incurred on the previous application.

Issues

[11] The issues to be decided in this application are:

a) Should Mr. Grenkie be permitted to intervene on this application, and

b) Should the applicant, Ms. Eaman, be appointed estate trustee of the Estate of the late Mr. Eaman?

Analysis

Mr. Grenkie is Granted Leave to Intervene on this Application

[12] Ms. Eaman has served a motion to amend her Statement of Claim in the lawyers negligence action. Mr Grenkie is the defendant in that action and will necessarily be entitled to participate in that motion. The proposed amendment would allow Ms. Eaman, in the capacity of Estate Trustee, to pursue her claim against Mr. Grenkie for her legal fees incurred in the previous application. Ms. Eaman could have sought to be appointed Estate Trustee at the same time as she sought this amendment to her Statement of Claim. Had she done so, Mr. Grenkie as the defendant in the action would have been entitled to fully participate and to oppose the relief sought. Instead, Ms. Eaman commenced the present application and contends Mr. Grenkie has no standing to intervene or participate because he is not a party to this application and has no financial interest in the Eaman Estate.

[13] The relief Ms. Eaman seeks in this application is sought to advance her claim for legal fees Mr. Grenkie allegedly owes her or owes the estate. He has a clear interest and entitlement to participate in an application to decide if Ms. Eaman has the standing to assert such claims against him on behalf of the estate. His potential indebtedness to the estate, if the estate has a claim to assert, warrants his intervention in this application, in the court's opinion. He has a legitimate interest in the question of whether Ms. Eaman can be appointed estate trustee for the purpose of claiming payment from him of her legal fees from the previous application. Mr. Grenkie's intervention will be allowed in relation to that issue.

Ms. Eaman is Not Entitled to be Appointed as Succeeding Estate Trustee

[14] The applicant Ms. Eaman wishes to be appointed estate trustee so that she can pursue a negligence/breach of contract claim against Mr. Grenkie and his law firm to recover the legal fees she incurred personally from her own lawyers in the previous application. She is currently asserting that claim in her personal capacity in the lawyers negligence action.

[15] The court will not appoint an estate trustee who would be in a conflict of interest in discharging their duties. The primary duty of an estate trustee is to faithfully carry out the testators wishes and to administer the estate in accordance with the terms of the will. In this case the alleged incapacity of the testator has never been proven. The applicant proposes, as estate trustee, to ask the court to override the instructions the testator provided to his lawyer concerning the distribution of his estate. This is to facilitate the recovery of personal legal fees paid by Ms. Eaman to her lawyers in her proceeding against the estate which was settled in March of 2023.

[16] Ms. Eaman chose to resolve her former proceeding against the estate by entering into the Minutes of Settlement with the former estate trustee Ms. Banford. Ms. Eaman chose not to seek costs personally in that settlement but, pursuant to the Minutes of Settlement she received the entire estate net of certain agreed upon expenses. She could have insisted on receiving costs but achieved the same result by receiving a larger payout from the estate. This settlement should not be re-visited. To do so is an abuse of process. Further, the estate has not suffered a loss resulting from Ms. Eaman paying the fees of her own lawyers. She should not become estate trustee to pursue a personal claim. The former estate trustee Ms. Banford incurred legal fees on behalf of the estate to defend Ms. Eaman's claims in the previous application. Ms. Banford was then compensated for such fees from estate funds, as provided in the Minutes of Settlement. These Minutes did not re-imburse Ms. Eaman for her legal fees and instead gave her all of the remaining estate assets. Mutual releases were included. To re-open this settlement would be an abuse of process.

[17] There is also a serious limitations issue the applicant faces. Section 38 of the Trustee Act enables an estate trustee to maintain an action for a tort or injury to the deceased in the same manner as the deceased could have if living and subsection 38(3) provides that such an action shall not be brought after the expiration of two years from the death of the deceased. The deceased died in July of 2021 and the lawyers negligence action was commenced in June of 2023 by Ms. Eaman personally and this application was commenced in 2025 and the applicant's motion to amend the statement of claim to allow the estate to sue Mr. Grenkie has not yet been heard. This limitations issue will be presumably addressed at the time the motion to allow the estate to sue Mr. Grenkie is heard. Nevertheless, this obstacle strongly militates against the relief the applicant is seeking herein.

[18] The Minutes of Settlement from the previous application, viewed with the evidence of the estate administration being completed by the previous estate trustee Ms. Bamford and the passage of a period in excess of two years since the testators death, all satisfy the court that it would be inequitable and contrary to the interests of the estate to permit Ms. Eaman to be appointed estate trustee primarily to leverage the applicant's effort to obtain re-imbursement of personal legal fees.

Disposition

[19] This application is dismissed with costs reserved to the trial judge in the lawyers negligence action (CV-23-92418).

Justice Charles T. Hackland

Date: August 15, 2025