Wills, Estates, Trusts Law - SCJ

This costs decision follows a lengthy guardianship and estate litigation between Edi Ferritto and her brother, Alfredo Ferritto, regarding their mother Lucia Ferritto.

The court reviews the procedural history, the parties' conduct, and the applicable legal principles for awarding costs.

Edi Ferritto, as the successful party, is awarded substantial indemnity costs for the trial and partial indemnity costs for the applications and motions, with certain reductions.

The decision details the calculation of fees and disbursements, and the rationale for the scale of costs awarded.

The applicant, David Rossetti, sought a vesting order for property in Elizabethtown, Ontario, to be held by himself and Anthony Joseph Rossetti as tenants in common, each with a 50% interest.

The court addressed procedural issues regarding service and representation of several respondent estates and the inability to locate the trustee in bankruptcy for one co-owner.

The court granted the requested vesting order, finding the procedural requirements satisfied and the equities favouring the applicant, and ordered the land registry to be amended accordingly.

The decision concerns whether withdrawals made by the respondent, Laura Giacomelli, from joint bank accounts shared with her late mother, Giuliana Buffa, constituted valid inter vivos gifts or were subject to a resulting trust in favour of the estate.

The court found that the respondent had rebutted the presumption of resulting trust and that the gifts were valid, not the result of undue influence or unconscionable procurement.

The application for a declaration and tracing order was dismissed.

This endorsement addresses the allocation of costs following a dispute over jointly held bank accounts between the estate trustees of Christine Black and her brother, Bruce Albert Chamberlain.

The court found that the respondent failed to rebut the presumption of resulting trust and that the accounts formed part of the estate.

The applicants sought full indemnity costs, while the respondent argued that all costs should be paid from the estate.

The court awarded the applicants partial indemnity costs, payable personally by the respondent, and declined to order any costs payable from the estate.

The applicant, Deanna McKinlay, sought a declaration that a document she wrote and the deceased signed was a valid testamentary instrument for the estate of Virginia Beecroft.

In the alternative, she sought a declaration that the deceased’s 2020 Will and Codicil should govern.

The court found the proffered document was not a valid will, as it was not a fixed and final expression of the deceased’s testamentary intentions, and ordered the estate to be administered in accordance with the 2020 Will and Codicil.

The court considered a motion by the JDH Defendants for production and disclosure of documents over which the plaintiffs claimed privilege in an oppression and breach of fiduciary duty action.

The court found that the plaintiffs met their initial onus to establish litigation privilege over communications from and after December 16, 2019, and denied the defendants’ request for the court to review the 282 documents.

The court ordered both sides to produce redacted versions of privileged documents (excluding those with current litigation counsel and post-litigation communications) and to meet and confer regarding any non-privileged questions.

No costs were awarded to either side.

The applicant, Amanda Morden, sought a declaration that the respondent, Ingrid Niwranski, held certain investment accounts in joint ownership with the deceased, Giuseppe Lagana, subject to a resulting trust in favour of his estate.

The court considered whether the presumption of resulting trust was rebutted by evidence of Lagana’s intention to gift the right of survivorship to Niwranski.

After reviewing affidavits, cross-examinations, and the testimony of a financial planner, the court found sufficient corroborative evidence that Lagana intended Niwranski to receive the accounts upon his death.

The presumption of resulting trust was rebutted, and judgment was granted in favour of the respondent.

The court considered Jack Shapiro’s application for dependant support and a declaration of trust over a condominium following the death of his wife, Carol-Sue Shapiro.

The court found that Jack was a dependant under the Succession Law Reform Act and that Carol-Sue had not made adequate provision for his support in her will.

The court ordered that title to the matrimonial condominium be transferred to Jack, in addition to the $250,000 bequest, balancing Jack’s needs and Carol-Sue’s testamentary intentions to leave the majority of her estate to her son, Michael Shapiro.

The court interprets Article 7 of Floyd Kersey’s will, determining the proper distribution of his Canadian property where a named beneficiary predeceased him.

The court finds that the testator intended a per stirpes distribution, so that the share of a predeceased beneficiary passes to their issue, rather than lapsing or being distributed per capita among surviving named beneficiaries.

The application was unopposed and the applicant was awarded full indemnity costs from the estate, with a portion of costs personally payable by a respondent who evaded service.

The applicant, Jose Silva, sought a certificate of pending litigation (CPL) against a house formerly co-owned by his late son and daughter-in-law, now solely owned by the respondent, Filipa Andreia Valadao.

Silva claimed an interest in the property based on funds he contributed, variously described as a loan, trust, or entitlement to sale proceeds.

The court found that while Silva raised a triable issue regarding a possible resulting trust, the claim was weak, inconsistent, and could be satisfied by damages rather than an interest in land.

The court also found the CPL was sought for improper purposes, including malice toward the respondent.

The motion for a CPL was dismissed.

The court considered whether to remove the respondent, Kathryn Pietron, as executrix and trustee of her late father's estate on an interim basis due to her health concerns and failure to comply with court orders.

The court found that, while a final removal motion was pending, the respondent's inability to fulfill her duties created an urgent risk to the beneficiaries.

The applicants, Joe and Ted Panchyshyn, were appointed as interim executors and trustees until the motion for permanent removal could be heard or further order of the court.

The applicant, Linda Kulchycki, sought to reinstate a 2008 power of attorney and codicil executed by her mother, Mary Kulchycki, and to set aside new powers of attorney and a will executed by Mary in 2020.

Linda alleged conflicts of interest and improper conduct by the respondents, Nancy and Diana Kulchycki, and the lawyer involved in the 2020 documents.

The court found that Linda provided no evidence of incapacity, undue influence, or mismanagement, and that a will challenge is premature while the testator is alive.

The application was dismissed, and costs were awarded against Linda.

The court considered whether the applicant, Gerry Tyndall, had a life interest in the property where he resided with the deceased, Gail Hill, pursuant to her will.

The court found that Mr. Tyndall had a life interest in the property, including the right of exclusive possession, subject to his responsibility for day-to-day expenses, while the estate was responsible for taxes, insurance, and capital improvements.

The decision also addressed the right to collect rent and the removal of other occupants.

This decision concerns a contested application to pass accounts in the estate of Christina Georgiou Psoma.

The applicant, Steve Georgiou, as estate trustee, sought to have his accounts approved following an ex parte order obtained by the objectors, Panayiotios and Zevoulla Georgiou.

The court addresses threshold issues regarding the propriety of the ex parte order, the scope of the accounting required, and substantive disputes over the treatment of a life insurance policy, a "roofing agreement" debt, and a joint CIBC account.

The court finds that the life insurance proceeds did not form part of the estate, upholds the roofing agreement as a valid debt, and determines that the joint account funds are estate assets.

The estate is found to be insolvent, and the court urges the parties to resolve remaining issues by agreement.

The decision concerns a motion by the Defendants to amend their Statement of Defence in an estate dispute regarding whether a $160,000 transfer from the deceased to his cousin was a loan or a gift.

The court finds that the proposed amendments do not constitute a withdrawal of admissions, and grants leave to amend under Rule 26.01, as no non-compensable prejudice to the Plaintiff is established.

The ruling clarifies the distinction between factual and legal admissions in pleadings and the applicable test for amendments.

The plaintiffs alleged that Maria Surovova and her company, Maria Mortgage Services Inc., engaged in a mortgage churning scheme, inducing the plaintiffs to take out a series of mortgages and transfer the proceeds to Surovova under the pretense that the funds would be applied to their mortgages.

Instead, Surovova misappropriated the funds for personal use.

The court found Surovova liable for civil fraud and breach of fiduciary duty, awarding the plaintiffs $1,666,059.13 in damages and $215,603.52 in costs.

The decision concerns the validity and testamentary effect of a 2019 Option Agreement, 2019 Wills, and two handwritten documents in the estate of Joyce Eileen Laur.

The applicant, Robert Jackson Laur, sought a declaration that the Option Agreement was valid and enforceable, and that at least one handwritten document constituted a holograph will.

The respondents argued incapacity and undue influence regarding the Option Agreement and challenged the testamentary intent of the handwritten documents.

The court found that the Option Agreement was valid and enforceable, as it reflected a longstanding intention and was not a new or complex decision for Grant Laur, despite his cognitive impairment.

The court also found that the handwritten documents did not reflect Joyce Laur’s fixed and final testamentary intention and thus had no testamentary import.

The court granted a motion to dispense with service of the statement of claim and motion on the deceased’s estate, finding that the plaintiff had made extensive but unsuccessful efforts to locate a representative for the estate.

The court relied on the Rules of Civil Procedure and relevant case law to permit the proceeding to continue in the absence of a representative, and ordered that any surplus proceeds be paid into court on notice to the beneficiaries.

Costs were fixed at $8,943.47.

The applicant, Ronald Shiomi, sought a declaration that he was a dependant of the deceased, Anna Maria Tocheri, and that she failed to make adequate provision for his support under the Succession Law Reform Act.

The court found that after a 53-year common law relationship, the deceased’s will, which left the applicant only personal and household effects and the residue to five charities, did not make adequate provision for his support.

The court ordered that 50% of the net estate be paid to the applicant and the remaining 50% be divided among the five named charities.

The court also awarded the applicant $15,000 in costs, plus disbursements and HST, to be paid by the estate.

This is a will challenge concerning the estate of Reka Anroop.

The applicants, Bryan Anroop and Amadai Hardayal, challenged the validity of Reka’s Fourth Will dated May 19, 2022, alleging lack of knowledge and approval, lack of capacity, undue influence, forgery, and unconscionable procurement.

The respondents are Reka’s adult children, with only Chandrawattie Naqvi participating in the litigation.

The court found that the Fourth Will was valid, Reka had capacity, was not unduly influenced, and the signature was not a forgery.

The applicants’ claim for reimbursement for renovations was allowed.

The court also addressed a related Small Claims Court action regarding a life insurance payout.