Court File and Parties

Court File No.: CV-23-00707193-00ES Date: 2025-09-19 Ontario Superior Court of Justice

In the Estate of Frieda Holzgethan

Between:

Mary Pierce, in her capacity as Estate Trustee of the Estate of Frieda Holzgethan Applicant

– and –

Werner Oswald, Walter Oswald, Franz Oswald, Gabriele Blazek, Adelheid Wagner, Franz Krutzler, Ewald Krutzler, Eberhard Wölfer, Eduard Wölfer and Edeltraud Steiner Respondents

Counsel: Peter Askew, for the Applicant No one appearing, for the Respondents

Heard: April 16, 2025 and July 23, 2025

Reasons for Decision

A.A. Sanfilippo J.

I. THE EVIDENCE

[1] The Applicant, Mary Pierce, brought this Application, in her capacity as the Estate Trustee of the Estate of Frieda Holzgethan (the "Estate"), for the Court's opinion, advice and direction regarding the interpretation of the Last Will and Testament of Frieda Holzgethan dated December 22, 1997 (the "Will"). The Applicant submitted that there are three possible interpretations of the residue clause of the Will.

[2] The Applicant brought this Application under Rule 75.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and established proper service of this Application on the persons with a financial interest in the Estate, in accordance with Rules 9.01(2)(b) and 75.06(2). None of the Respondents appeared in this Application.

[3] For brevity and clarity, I will at times refer to the family members by their first names, respectfully.

II. THE FACTUAL CONTEXT

[4] This Application was supported by the affidavit of the Applicant, Mary Pierce, sworn September 21, 2023. The Applicant's affidavit evidence was not contested and frames the factual context for my analysis.

[5] Frieda Holzgethan died on July 15, 2016, in Toronto, at 91 years of age (the "Deceased"). She had been retired for some 25 years. At the time of preparation of her Will in 1997, almost 19 years before her death, Frieda's husband, Alexander Holzgethan, had already died. Frieda named her only child, Magrid Holzgethan, as the sole executor and trustee of her Will and as the sole residuary beneficiary. However, Magrid predeceased her mother.

[6] The Will appointed Frieda's lawyer, Frank B. Musil, as alternate estate trustee. Mr. Musil predeceased Frieda.

[7] Mary Pierce deposed that she was a family friend of Frieda and of Magrid and that her mother, Carol Pierce, worked with Magrid as secondary school teachers and developed a life-long friendship. Upon Magrid's death, Carol Pierce acted as Magrid's estate trustee.

[8] The Applicant knew that Frieda had five siblings: four of whom had predeceased Frieda, namely, Paula Schranz, Justine Krutzler, Angela Wölfer, and Maria Wölfer (collectively, the "Predeceased Siblings"), and one sister, Hilda Oswald, who survived Frieda but died in 2020 (collectively, the "Five Siblings"). The Applicant deposed that the spouses of the Five Siblings all died before Frieda. This information was gathered by the Applicant and her mother, Carol Pierce, as part of the administration of Magrid's Estate and in consideration of the administration of the Deceased's Estate.

[9] In summary, at the time of Frieda's death, Frieda had the following surviving family members (collectively, the "Family Members"):

(a) Her sister, Hilda Oswald, who has since died, and Hilda's children, Werner Oswald, Franz Oswald, Walter Oswald and Gabriele Blazek (collectively, the "Oswald Children").

(b) Her niece, Adelheid Wagner (nee Schranz), being the only child of Frieda's late sister, Paula Schranz.

(c) Her nephews, Franz Krutzler and Ewald Krutzler, being the only children of Frieda's late sister, Justine Krutzler.

(d) Her nephew, Eberhard Wölfer, being the only child of Frieda's late sister, Angela Wölfer.

(e) Her nephew and niece, Eduard Wölfer and Edeltraud Steiner (nee Wölfer), being the only children of Frieda's late sister, Maria Wölfer.

[10] On February 29, 2020, the Applicant filed an Application for the issuance of a Certificate of Appointment of Estate Trustee with a Will (the "CAET") for the Estate, in court file number 2020-010970 (the "Probate Application"). The Probate Application was brought on notice to the Family Members, after the Applicant canvassed with the Family Members whether anyone was prepared to act as estate trustee. All the Family Members reside in Austria. All the Family Members declined to stand for appointment as Estate Trustee of the Estate and consented to the Applicant's appointment. On February 23, 2021, a CAET was issued in the Probate Application to the Applicant, Mary Pierce, appointing her as the Estate Trustee of the Estate.

III. FRAMING THE WILL INTERPRETATION ISSUE

[11] Considering that Magrid predeceased Frieda, clause 3(d) of the Will governs the distribution of the residue of the Estate, as follows ("Clause 3(d)"):

3. I GIVE all my property, including any property over which I may have a general power of appointment, to my Trustee on the following trusts:

(d) if my said daughter should predecease me, I direct my Trustee to pay out of and charge to the capital of my Estate my debts, funeral and testamentary expenses and to divide the residue of my estate into equal shares per stirpes, and to give or otherwise transfer one such share to each of the following:

my sister, Paula Schranz, of [Austria],

my sister, Justine Krutzler, of [Austria],

my sister, Angela Woelfer, of [Austria],

my sister, Maria Woelfer, of [Austria], and

my sister, Hilda Oswald, of [Austria],

for their own respective uses absolutely, and in the event that all of the aforesaid persons shall have predeceased me, I direct my Trustee to divide the residue of my estate among my surviving issue".

[12] Since Hilda Oswald survived the Deceased, the last term in Clause 3(d) is not applicable, specifically the following:

…and in the event that all of the aforesaid persons shall have predeceased me, I direct my Trustee to divide the residue of my estate among my surviving issue." [Emphasis added]

[13] Clause 3(d) may therefore be distilled, in pertinent part, to the following:

(d) … I direct my Trustee to … divide the residue of my estate into equal shares per stirpes, and to give or otherwise transfer one such share to each of … [the Five Siblings] …, for their own respective uses absolutely …

[14] By letter dated June 29, 2021, the Applicant notified the Family Members of the issuance of the CAET and of the Applicant's understanding that each of the Five Siblings would receive an equal one-fifth (20%) share in the residue of the Estate and that in the case of the Predeceased Siblings, the deceased sister's one-fifth share would be provided in equal shares to the Predeceased Siblings' issue, meaning lineal descendants. This resulted in the following proposed distribution of the residue of the Estate:

(a) The late Paula Schranz was entitled to a one-fifth share and, considering her death, her only child, Adelheid Wagner (nee Schranz) would receive a one-fifth (20%) share of the residue.

(b) The late Justine Krutzler was entitled to a one-fifth share and, considering her death, her two children, Franz Krutzler and Ewald Krutzler, would share her one-fifth distribution by each receiving a one-tenth (10%) share of the residue.

(c) The late Angela Woelfer was entitled to a one-fifth share and, considering her death, her only child, Eberhard Wölfer would receive a one-fifth (20%) share of the residue.

(d) The late Maria Woelfer was entitled to a one-fifth share and, considering her death, her two children, Eduard Wölfer and Edeltraud Steiner (nee Wölfer) would share her one-fifth distribution by each receiving a one-tenth (10%) share of the residue.

(e) While alive, Hilda Oswald requested that her one-fifth share in the residue be distributed to her four children in equal one-twentieth (5%) shares. Since Hilda's death, Bertram Schneeberger, an Austrian lawyer acting for Werner Oswald, showed that Hilda Oswald died intestate with the result that the Oswald Children are equal beneficiaries of Hilda's estate.

[15] I will refer to this proposed plan of distribution of the residue as the "Family Branch Distribution".

[16] Mr. Schneeberger stated, in a letter dated October 8, 2021, and again in a letter dated December 29, 2021, that since Hilda was the only sister who was alive at the time of Frieda's death, that the entire residue of the Estate should be distributed to Hilda, and now to Hilda's estate by distribution in equal one-quarter (25%) shares to each of the Oswald Children. I will refer to this proposed plan of distribution of the residue of the Estate as the "Surviving Sibling Distribution".

[17] Mr. Schneeberger did not cite any principle of law in support of his position. On February 2, 2022, when notified that this Application would be brought for the Court's opinion, advice, and direction regarding the interpretation of the Will, Mr. Schneeberger wrote that he "did not share" the legal opinion of the Applicant's counsel, but that his "client [Werner Oswald] will refrain from engaging legal counsel in Canada."

IV. THE ISSUE

[18] The sole issue raised by this Application is the interpretation of Clause 3(d) of the Will.

[19] The Applicant submitted, in my view correctly, that there are three possible interpretations of Clause 3(d):

(a) The residue passes to the Deceased's surviving sibling, Hilda Oswald, and to the Predeceased Siblings, each in equal one-fifth (20%) shares, and in the case of each Predeceased Sibling and now the late Hilda Oswald, the 20% share passes to their child or children, in the manner set out in the Family Branch Distribution.

(b) The residue passes to the Deceased's sole surviving sibling, Hilda, and the residue to the Predeceased Siblings lapses by reason of their death prior to the Deceased but is saved by s. 31 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the "SLRA") and passes to their children. In this case, this interpretation would result in the same distribution as the Family Branch Distribution.

(c) The entirety of the residue passes to Hilda Oswald as the sole surviving sibling of the Deceased, as set out in the Surviving Sibling Distribution.

[20] Before analyzing the will interpretation issue, I will explain my findings on the issue of service.

V. SERVICE OF THE APPLICATION

[21] Rule 9.01(2)(b) requires that an estate trustee serve an Application on the beneficiaries of the estate where, like here, the estate trustee seeks the interpretation of a will. Additionally, Rule 75.06(2) provides that an Application for directions "shall be served on all persons appearing to have a financial interest in the estate."

[22] Here, the Respondents are the Family Members, and thereby comprise all the persons who appear to have a financial interest in the Estate. All the Respondents reside in Austria. The Applicant did not require leave of the Court to serve the Application Record outside of Ontario based on Rule 17.02(c)(ii), which provides that a party to a proceeding may be served outside of Ontario without a court order where the proceeding consists of a claim for the interpretation of a will in respect of "the personal property of a deceased person who, at the time of death, was resident in Ontario."

[23] Rule 17.05(1) prescribes the manner of service where the Respondents reside in a "contracting state" within the meaning of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, 658 U.N.T.S. 163, Can. T.S. 1989 No. 2. Austria is a contracting state. The Applicant showed that all the Respondents were served with the Application Record through Austria's Central Authority, the Federal Ministry of Justice.

[24] The Applicant established that all the Respondents were properly served with the Application. None appeared.

VI. APPLICABLE LEGAL PRINCIPLES

[25] In La Calamita v. La Calamita, 2024 ONSC 4219, 96 E.T.R. (4th) 81, at paras. 53-55, I summarized the applicable principles that guide the Court in the interpretation of a will. The Court must determine the testator's actual or subjective intention of how the testator intended to dispose of their property. To do so, the judge places themself in the position of the testator at the time that the will was made: Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 36; Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 13; Walters v. Walters, 2022 ONCA 38, 160 O.R. (3d) 249, at para. 37; Jonas v. Jonas, 2022 ONCA 845, 475 D.L.R. (4th) 720, at para. 13. This was succinctly explained by the Court of Appeal in Burke (Re), [1960] O.R. 26 (Ont. C.A.), at p. 30, as applied in Ross, at para. 37, as follows:

Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

[26] Brown J.A. instructed in Ross, at para. 39, that this "armchair rule" involves construing the will in the context of all surrounding circumstances present at the time that the will was made: "Sitting in the place of the testator, the court assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members." Brown J.A. described the "armchair rule" as "an over-arching framework within which a judge applies the various tools for will construction at his or her disposal", and that recently courts have included reference to surrounding circumstances even when the testator's intention is discernible from a plain reading of the will: Ross, at para. 40-41, with reference to Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.

[27] This analysis is required even when, like here, the direction sought by the Estate Trustee is unopposed. The Judge is obligated to be satisfied that the declaration sought sets out the testamentary intentions of the testator: Hejno v. Hejno, 2025 ONCA 249, at paras. 2 and 9.

VII. ANALYSIS

[28] In my view, Frieda's actual or subjective intentions regarding the disposition of her property upon her death are discernible from a plain reading of the Will. In any event, any evidence of the surrounding circumstances at the time that the Will was made can be found in the Will. Frieda was elderly, her husband had died, her only child was Magrid, and she had five siblings who lived abroad. Other sources of surrounding circumstances at the time that the Will was made are not available, which is understandable considering that the Will was prepared some 19 years before Frieda's death. The drafting lawyer and Magrid have died, and the drafting lawyer's file material is either lost or destroyed. No admissible extrinsic evidence currently exists.

[29] The interpretation of the Will requires giving effect to Frieda's intentions as ascertained from the words used in the Will. This requires having regard to the Will as a whole: Dice, at para. 36.

A. What Was the Testator's Intention?

[30] The central question in the interpretation of the Will is whether Frieda intended, in the event that Magrid should predecease her, to benefit each of her Five Siblings equally and, in the event that any of them predeceased her, each of the Five Siblings' "stocks" or "stirps", referred to as "family branches", or whether Frieda intended to benefit only any sister that outlived her. Having regard to the Will as a whole, I have determined that Frieda intended to benefit each of her Five Siblings equally, including the family branches of any sister that predeceased her. This determination is based on giving effect to the term per stirpes, the absence of an express contrary intention, and by consideration of other terms of the Will, as I will explain.

(a) The Use of the Term "Per Stirpes"

[31] In pertinent part, Clause 3(d) directs the Trustee to "divide the residue of my estate into equal shares per stirpes, and to give or otherwise transfer one such share to each of … [the Five Siblings], for their own respective uses absolutely …" [Emphasis added]. The Court of Appeal explained, in Dice, at para. 12, that the term per stirpes means that each branch (or stirps) of the beneficiary's family is entitled to share in the beneficiary's inheritance should the beneficiary pre-decease the testator, as follows:

A per stirpes distribution means that each branch of the family is entitled to only one share of the gift to be distributed among the members of the branch. Under a gift to issue alive at the testator's death per stirpes, this would mean the children of a deceased child of the testator would share the deceased child's share of the gift. This is in contrast to a per capita distribution under which each lineal descendant of the testator alive at the testator's death would receive one share of the gift.

[32] The term per stirpes implies the possibility of an intergenerational gift, passing not only to the beneficiary but, in the event of the beneficiary's death, also to the beneficiary's issue or lineal descendants. The term per stirpes does not describe or identify beneficiaries, but rather describes a method of distribution in a will under which each stock or branch of a family receives one share of the gift: Dice, at para. 54. This stands in contrast to a per capita distribution which is a gift that designates only first-generation descendants. In a per capita distribution, each named beneficiary who survives the testator receives one share of the gift. In this case, the effect of a per capita distribution would be to distribute the entire residue to the survivor of the Five Siblings because the death of the Predeceased Siblings would cause their gift of a share of the residue to lapse, thereby reinstating their share to the residue of the Estate.

[33] The Will is ambiguous because Clause 3(d) uses two contradictory terms. Clause 3(d) states that the Trustee is to divide the residue to each sister "in equal shares per stirpes", which supports an intergenerational transfer to each branch of each sister's family. At the same time, Clause 3(d) names each sister individually as a residuary beneficiary of the Estate and provides that each named residuary beneficiary shall receive an equal share "for [each named sister's] own respective uses absolutely". This could be interpreted to mean, but without expressly stating, a per capita, first-generation distribution, providing each sister with a share in the residue only for the surviving sister(s) and not for their family branch.

[34] An ambiguity of this nature was considered by the Court of Appeal in Dice. There, the testator left a life interest in the residue of the estate to his spouse, and directed that upon his spouse's death, the residue would be divided between his son and his daughter, per stirpes. The son predeceased his mother so that the residue of the estate did not vest until after the life tenant's death. The question arose as to who would be entitled to the son's share in the residue of his father's estate upon the mother's death. This turned on the meaning to be attributed to the term per stirpes in the residue clause.

[35] In Dice, the Application Judge found that there was a contradiction in terms because a gift to a named residuary beneficiary is a gift to a class of a single generation whereas the term per stirpes shows an intention to benefit the family branch (stirp) of the named residuary beneficiary. However, the Application Judge declined to not attribute meaning to, or disregard the term per stirpes, as was done by Cullity J. in Lau v. Mak Estate (2004), 10 E.T.R. (3d) 152, and instead found that the testator had intended, through the use of the term per stirpes, to equally benefit each branch of his family, both the son's family branch and the daughter's family branch.

[36] On appeal, the Court of Appeal in Dice framed the central question as whether the Application Judge erred in holding that the use of the phrase "per stirpes" demonstrated an intention by the testator to treat his children's family branches equally in the event that either of them predeceased their mother. The Court of Appeal held that the Application Judge made no error in doing so. The Court of Appeal observed that none of the cases relied upon by Cullity J. in Lau lays down a rigid rule that guides the analytical reconciliation of a per stirpes term with wording that suggests a per capita distribution. Instead, the cases show that reference to the per stirpes term forms part of the Court's objective of striving to ascertain the intention of the testator in each particular case: Dice, at para. 59. The Court of Appeal concluded that the most likely meaning of the phrase per stirpes in Dice was to convey the testator's intention to benefit his children's descendants if either or both of his children should predecease their mother.

[37] The analysis in Dice was applied by the Court of Appeal in Jonas, at para. 20, where the Court held that the term per stirpes can be interpreted in more than one way, and that the case law supports the understanding that a testator's use of the term per stirpes shows an "intention to divide a portion of the estate into equal shares at the nearest generation with surviving heirs, or as a type of 'gift-over' mechanism." The Judge must look at the whole will for context.

[38] I decline to disregard the use of the term per stirpes in Clause 3(d). I come to this conclusion by applying the principles set out in Dice, at para. 86, and the instruction in Jonas at para. 13 and Ross at para. 37 that the whole of the will must be considered in will interpretation. I find that Frieda intended that the term per stirpes have some meaning because, if not, she would have omitted the per stirpes term from the Will. This analysis supports my finding that Frieda intended that the share of the residue that she left for each of her five sisters would pass to their issue, or lineal descendants in the event that any of the sisters should die before Frieda.

(b) The Absence of an Express Contrary Intention

[39] The Will, construed holistically, does not contain any express direction that the share in the residue of any sister shall be voided if the sister should predecease Frieda. There is no express wording that limits the inheritance of the residue to only the surviving sister or sisters and not their lineal descendants. On the other hand, by expressly listing all Five Siblings, Frieda showed an intention to benefit all sisters equally. The Will does not expressly state that the beneficiary's entitlement to share in the residue is per capita and would lapse if the sister predeceases Frieda.

[40] The Will contains one term that supports an interpretation that Frieda intended that the entirety of the residue passes to Hilda Oswald as the sole surviving sibling of the Deceased: specifically, the term that the gift of the share of the residue be granted to the named Five Siblings "for their own respective uses absolutely." As I have explained, this term can, on its own and absent any provision providing a contrary intention, support a per capita distribution. However, for the reasons already stated, I find that express per stirpes term reflects Frieda's intentions and overrides this wording. If it were necessary, I would interpret the pronoun "their" in the term "for their own respective uses absolutely" to refer to both the named sisters and, in the event of the death of any of the named sisters, the members of the deceased sister's family branches. Such an interpretation would be bolstered by the term "for their own respective uses absolutely" following (not preceding) the term per stirpes in the Will.

(c) Other Provisions Supporting the Will Interpretation

[41] Of the ten clauses in the Will, two clauses address the treatment of any entitlement to a share in the Estate by a minor beneficiary, specifically, clauses 4 and 6, which provide as follows:

4. IF ANY PERSON should become entitled to any share in my Estate before reaching the age of majority, the share of such person shall be held and kept invested by my Trustee and the income and capital or so much thereof as my Trustee in his absolute discretion considers necessary or advisable shall be used for the benefit of such person until he or she obtains the age of majority.

5. I AUTHORIZE my Trustee to make any payments for any person under the age of majority to a parent or guardian standing in loco parentis to such person whose receipt shall be a sufficient discharge to my said Trustee.

[42] These provisions would be unnecessary and would have no meaning or effect if Frieda intended to confer an interest in the residue to her sisters per capita. None of the sisters were minors at the time that the Will was made. These provisions are consistent with the use of the term per stirpes, and with an intention to make an intergenerational gift of an interest in the residue to the family branch of a sister in the event that the sister should predecease Frieda.

(d) Conclusion – The Residue Passes to the Beneficiaries' Family Branches (Stirps)

[43] For these reasons, having regard to the Will as a whole, I conclude that Frieda intended to benefit each of her Five Siblings equally, and to distribute the residue of her Estate to each of her five sisters and to the family branches (stirps) of any sister that predeceased her. While the testator used the term per stirpes in an unclear manner, the term per stirpes admits of more than one interpretation and, in this case, manifests the Deceased's intention to benefit all her five sisters equally and, in the event that any of them should not survive her, the family branches of a deceased sister.

[44] Clause 3(d) is, in my view, ambiguous. However, I am satisfied that the interpretation that I have made of Clause 3(d) most closely accords with and conforms to my assessment of Frieda's intentions.

[45] Accordingly, an Order shall issue that the residue of the Estate passes to the Deceased's surviving sibling, Hilda Oswald, and to the Predeceased Siblings, each in equal one-fifth (20%) shares, and in the case of each Predeceased Sibling and now the late Hilda Oswald, the 20% share passes to their child or children, in the manner set out in the Family Branch Distribution.

B. The Operation of Section 31 of the SLRA

[46] Section 31 of the SLRA, referred to as the "Anti-Lapse Provision", provides, in pertinent part, as follows:

31 Except when a contrary intention appears by the will, where a devise or bequest is made to a … sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,

(a) if that person had died immediately after the death of the testator;

(b) if that person had died intestate;

(c) if that person had died without debts; and

(d) if section 45 had not been passed.

[47] Considering my finding that Frieda's grant to the Predeceased Siblings did not lapse by reason of their death prior to Frieda's passing but rather passes intergenerationally to their children, s. 31 is not applicable. I observe, however, that if s. 31 had been found applicable, and in the event of a finding that its requirements had been established, the result would have been the same as the Family Branch Distribution because all the Predeceased Sisters' spouses predeceased Frieda.

C. The Possible Interpretation of a Per Capita Distribution to the Oswald Children

[48] On the reasons now stated, the Will cannot be interpreted in a manner that gives rise to the residue passing to Hilda Oswald as the sole surviving sibling of the Deceased. In my determination, the Will does not support the Surviving Sibling Distribution, which was premised on a finding that the gift to the residuary beneficiaries was per capita.

VIII. DISPOSITION

[49] On the basis of these reasons:

(a) A declaration shall issue that Clause 3(d) of the Last Will and Testament of Frieda Holzgethan dated December 22, 1997 (the "Will") shall be interpreted such that the residue of the Estate shall be transferred to the Deceased's surviving sibling and to the issue of each of the Deceased's siblings who predeceased the Deceased in proportionate shares (one share to the surviving sibling, and one share cumulatively to the issue of each predeceased sibling).

(b) An Order shall issue that, pursuant to the interpretation of Clause 3(d) of the Will declared by the court in this Judgment, the residue of the Estate of Frieda Holzgethan shall be distributed as follows:

(i) One-fifth (20%) to Adelheid Wagner;

(ii) One-fifth (20%) to Eberhard Wölfer;

(iii) One-tenth (10%) to Franz Krutzler;

(iv) One-tenth (10%) to Ewald Krutzler;

(v) One-tenth (10%) to Eduard Wölfer;

(vi) One-tenth (10%) to Edeltraud Steiner;

(vii) One-twentieth (5%) to Franz Oswald;

(viii) One-twentieth (5%) to Walter Oswald;

(ix) One-twentieth (5%) to Werner Oswald; and

(x) One-twentieth (5%) to Gabriele Blazek.

IX. COSTS

[50] The Applicant filed a Bill of Costs in support of her claim for full indemnity fees in the amount of $32,878.87, consisting of $26,909.00 in legal fees, $2,471.70 in disbursements and HST of $3,498.17. The Applicant submitted that her costs should be paid from the assets of the Estate.

[51] It is well-established that estate trustees are generally entitled to be indemnified for all reasonably incurred costs in the administration of an estate: Geffen v. Goodman, [1991] 2 S.C.R. 353, at p. 39; Westover Estate v. Jolicoeur, 2024 ONCA 81, at para. 14; Muscat v. Muscat Estate, 2025 ONCA 518, at para. 19. Further, the modern approach to fixing costs in estate litigation provides that costs are payable by the estate where public policy considerations apply, and one such policy consideration is "the need to give effect to valid wills that reflect the intention of competent testators": Westover Estate v. Jolicoeur, 2024 ONCA 81, at paras. 12-13; White v. Gicas, 2014 ONCA 490, 98 E.T.R. (3d) 197, at para. 71.

[52] In my view, the costs claimed by the Applicant as Estate Trustee are fair, reasonable and proportionate. The disbursements relate mainly to the costs incurred in effecting service on the Respondents in Austria and are reasonable. The interpretation issue identified by the Estate Trustee was complex and was questioned by Werner Oswald, necessitating a determination. The steps taken by the Applicant to advance this Application were reasonable and conducted efficiently.

[53] An Order shall issue granting the Applicant costs of this Application, fixed in the amount of $32,878.87, all inclusive of legal fees, disbursements and applicable taxes, payable to the Applicant from the assets of the Estate of Frieda Holzgethan.

X. FORMAL JUDGMENT

[54] The Applicant may take out a formal Judgment by filing a draft Judgment that accords with my disposition of this Application on the Case Center bundle for this hearing (003), and forwarding a copy, in PDF and Word format, to the Court Registrar and the Estates List Trial Coordinator, to be brought to my attention.

A.A. Sanfilippo J.

Released: September 19, 2025